Delhi High Court - Orders
Scj Plastic Limited vs Commissioner Of Delhi Goods And Service ... on 29 March, 2023
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~45 & 46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ VAT APPEAL 4/2023, CM APPL. 10523/2023 & CM
APPL. 10524/2023
SCJ PLASTIC LIMITED ..... Appellant
Through: Mr. Rajesh Mahna, Mrs.
Sonia Sharma, Mr. A. K.
Babbar and Mr. Akshay
Bhatia, Advocates.
versus
COMMISSIONER OF DELHI GOODS AND SERVICE
TAX ..... Respondent
Through: Mr. Rajeev Aggarwal,
ASC along with Mr. Ankit
Gupta, Advocate.
+ VAT APPEAL 5/2023, CM APPL. 10795/2023 & CM
APPL. 10796/2023
SCJ PLASTIC LIMITED ..... Appellant
Through: Mr. Rajesh Mahna, Mrs.
Sonia Sharma, Mr. A. K.
Babbar and Mr. Akshay
Bhatia, Advocates.
versus
COMMISSIONER OF DELHI GOODS AND SERVICE
TAX ..... Respondent
Through: Mr. Rajeev Aggarwal,
ASC along with Mr. Ankit
Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE AMIT MAHAJAN
ORDER
% 29.03.2023
1. The appellant has filed the present appeal impugning an order dated 01.10.2021 in Appeal No. 162-165/ATVAT/2019 and Appeal No. 166-169/ATVAT/2019.
2. It is pointed out that the appellant has filed an appeal against the said order, which was dismissed as withdrawn on Signature Not Verified 15.09.2022. The said order passed (vide Appeal No. 9/2021 and Digitally Signed By:HARMINDER KAUR Signing Date:02.04.2023 12:50:37 vide Appeal No. 10/2021) by this Court is set out below:
"1. After some arguments, Mr Rajesh Mahna, who appears on behalf of the appellant, seeks leave to withdraw the above- captioned appeals, to take recourse to an appropriate remedy, to demonstrate that movement of goods did take place, pursuant to a contract, in terms of Section 3(1)(a) of the Central Sales Tax Act, 1956.
2. Accordingly, the above-captioned appeals are dismissed as withdrawn, with liberty as prayed for, albeit as per law."
3. It is apparent from the above that the appellant had withdrawn the appeal after some arguments, and the only liberty sought by the appellant was to take an appropriate remedy for demonstrating that the movement of goods had taken place before the concerned authority.
4. It is now the petitioner's case that the documents are already on record and clearly establish the same.
5. Learned counsel appearing for the respondent opposed the maintainability of the present appeal on the ground that since the appellant was not granted any liberty to file a fresh appeal, the present appeals are not maintainable. He relied upon the decision of the Supreme Court in Vinod Kapoor vs. State of Goa & Ors. in Civil Appeal No. 8643-8644/2003.
6. The Supreme Court had, while examining whether a special leave petition against an order passed by the High Court would be maintainable in a case where on a prior occasion, the special leave petition had been dismissed, held that the appeal would not be maintainable. The relevant extract of the said decision is set out below:
"8. The question that we have to decide is whether the appeal will lie against the order dated 29-1-2000 of the High Court dismissing Writ Petition No. 253 of 1999 when an earlier Special Leave Petition against the said order dated 29-1-2000 of the High Court was filed by the appellant but was withdrawn with the permission of this Court to pursue his remedy by way of review against the said order dated 29-1-2000 of the High Signature Not Verified Court. As the appellant has withdrawn the Special Leave to Digitally Signed By:HARMINDER KAUR Signing Date:02.04.2023 12:50:37 Appeal against the order dated 29-1-2000 of the High Court with permission to pursue his remedy by way of review instead and had not taken the liberty from this Court to challenge the order dated 29-1-2000 afresh by way of special leave in case he did not get relief in the review application, he is precluded from challenging the order dated 29-1-2000 of the High Court by way of Special Leave to Appeal under Article 136 of the Constitution.
9. In Abhishek Malviya v. Welfare Commissioner and Anr. (supra), cited by the counsel for Respondent 8, the order dated 13-3-1997 of the Madhya Pradesh High Court sustaining the order of compensation passed by the Additional Welfare Commissioner was challenged before this Court in Special Leave Petition and by order dated 4-5-1999 this Court dismissed the Special Leave Petition as withdrawn and when the fresh appeal by way of special leave under Article 136 of the Constitution was filed, this Court held that the fresh appeal is liable to be dismissed as not maintainable. Para 8 of this Court's order in the aforesaid case of Abhishek Malviya v. Welfare Commissioner and Anr. (supra) is quoted hereinbelow:
8. We find no merit in the appellant's contention. The order dated 4-5-1999 of this Court specifically refers to the error in the order describing the Appellant as "deceased" and dismissed the SLP as withdrawn with the following observation: "He wants to apply to the Additional Welfare Commissioner for correction. We express no opinion in that behalf". No liberty was reserved to file a fresh appeal or seek review of the order dated 13-3-1997 on merits. The order dated 13-3-1997 having attained finality, his efforts to reagitate the issue again and again is an exercise in futility. We are therefore of the view that the appeal is liable to be dismissed.
10. Moreover, on the High Court rejecting the application for review of the Appellant, the order rejecting the application for review is not appealable by virtue of the principle in Order XLVII, Rule 7 of the Civil Procedure. In ShankerMotiram Nale v. Shiolalsing Gannusing Rajput; Suseel Finance and Leasing Co. v. M. Lata and Ors. and M.N. Haider and Ors.
v. Kendriya Vidyalaya and Ors. (supra) cited by the learned counsel for Respondent No. 8, this Court has consistently held that an appeal by way of Special Leave Petition under Article 136 of the Constitution is not maintainable against the order rejecting an application for review in view of the provisions of Order XLVII, Rule 7 of the Code of Civil Procedure.
11. There is nothing in the decisions cited by the Appellant to show that this Court has taken a view different from the view taken in Abhishek Malviya v. Additional Welfare Commissioner and Anr. (supra) with regard to maintainability of an appeal by way of Special Leave under Article 136 of the Constitution against an order of the High Court after an earlier Special Leave Petition against the same order had been withdrawn without any liberty to file a fresh Special Leave Petition.
Signature Not VerifiedSimilarly, there is nothing in the decisions cited by the Appellant to show that this Court has taken a view that against the order Digitally Signed By:HARMINDER KAUR Signing Date:02.04.2023 12:50:37 of the High Court rejecting an application for review, an appeal by way of Special Leave under Article 136 of the Constitution is maintainable.
12. In the result, we hold that the Civil Appeals are not maintainable and we accordingly dismiss the same. We, however, make it clear that we have not expressed any opinion on the merits of the case of the Appellant or on whether the Authority or the Municipal Council could under law issue the notices to the Respondent No. 8 or take any action in respect of the construction made by him on the land in Survey No. 250/12 in Village Taleigao."
7. The above principle was also reiterated by the Supreme Court in a later decision: Sandhya Educational Society & Ors. vs. Union of India & Ors. : Civil Appeal No. 2927/2013 decided on 02.04.2020.
8. Mr. Mahna, learned counsel appearing for the appellant submits that the decision in the case of Vinod Kapoor (supra) was based on the peculiar facts and circumstances of the case. He submits that the facts in the present case are of material difference since the appellant had withdrawn the earlier appeal with the liberty to file a review petition. He submits that no such liberty had been sought or granted by the appellant in the case of Vinod Kapoor (supra).
9. We are unable to accept the aforesaid contention. The principle is now well settled that the litigant cannot file repeated appeals against the same order. Once the appellant has withdrawn the appeal without reserving any liberty to file afresh, the said remedy will stand exhausted.
10. In view of the above, the present appeals are dismissed as not maintainable.
VIBHU BAKHRU, J Signature Not Verified AMIT MAHAJAN, J Digitally Signed MARCH 29, 2023/'MR' By:HARMINDER KAUR Signing Date:02.04.2023 12:50:37