The main legal point established in the judgment is the Court's authority to review its own judgment and rectify errors apparent on the face of the record, especially in cases where such errors cause a miscarriage of justice.

Wangdi, J.

These two Review Petitions are taken up together as the Petitioners in both the cases seek to review the judgment of this Court dated 29-11-2012 by which the Writ Petitions being WP(C) Nos.23 of 2011 and 36 of 2011 were disposed of. It is relevant to note that one of us (Wangdi, J.) was a part of the Division Bench that rendered the judgment under review.

2. In those Writ Petitions, the Petitioners had challenged the constitutional validity of Sub-Clause (zzzzn) of Clause (105) of Section 65 of the Finance Act, 1994, as inserted by the Finance Act, 2010, on the ground, inter alia, that the Parliament lacked necessary legislative competence to levy tax on sale of lotteries as service in the light of Entry 34 of List II of the Seventh Schedule of the Constitution of India and that Entry 92C of List I of the Constitution of India has not yet been notified. For convenience, we may reproduce the prayers sought for in WP(C) No.36 of 2011 pari materia the ones in WP(C) No.23 of 2011 and which are as follows:-

“(i) to Declare that sale of lottery tickets is not a service and consequently not liable to service tax under clause (zzzzn) of Section 65(105) of the Finance Act, 1994 (as amended by Finance Act, 2010);

(ii) to Declare that the clause (zzzzn) of Section 65(105) of the Finance Act, 1994 (as amended by Finance Act, 2010) with effect from 01.07.2010 is ultra vires the Constitution of India;

(iii) issue a Writ of Mandamus directing the Respondents to refund forthwith the amount of service tax collected from the Petitioner under clause (zzzzn) of Section 65(105) of the Finance Act, 1994 (as amended by Finance Act, 2010) with effect from 01.07.2010;

(iv) issue a Writ of Prohibition or such other appropriate writ order or restraining the Respondents from demanding any amounts by way of service tax on the activity of the Petitioner in relation to lottery tickets under clause (zzzzn) of Section 65(105) of the Finance Act, 1994;

(v) award costs to the Petitioner;

(vi) pass such other order/orders as may be deemed fit and proper in the facts and circumstances of the case.”

3. Upon hearing the parties at length, by our detailed judgment dated 29-11-2012, the Writ Petitions were allowed whereby we held as under:-

“(i) In the backdrop of discussion on Ground (A) we have no hesitation to conclude that the activities of the lottery distributors i.e. the petitioners herein do not constitute a service and thus beyond the purview of “taxable service” as statutorily defined under clause (zzzzn) of sub-section 105 of Section 65 of the Finance Act, 1994 as amended vide Finance Act, 2010.

(ii) The activity of promotion, marketing, organizing or in any other manner assisting in organizing game of chance including lottery is an activity included in the expression “betting and gambling” as incorporated under Entry 34 and 62 of List II to Seventh Schedule of Constitution of India.

(iii) The activity of promotion, marketing, organizing or in any other manner assisting in organizing game of chance including lottery being an activity of “betting and gambling” under Entry 62, List II to Seventh Schedule of Constitution of India, the State Legislature alone is competent to levy any tax on such activity under Entry 62.

(iv) The Parliament has the competence and jurisdiction to levy taxes on any subject matter including “service tax” under Entry 97, List I, read with Article 248 of the Constitution of India except where such powers are traceable to any of the entries in List II and III to Seventh Schedule of Constitution of India.

(v) Power to tax the activity of “betting and gambling” as explained above being within the exclusive domain of State Legislature under Entry 62, List II, the Parliament in exercise of its residuary power under Entry 97, List I to Seventh Schedule of Constitution of India lacks legislative competence to impose any tax including “service tax” on such activity.”

4. Upon our above findings, the impugned Sub-Clause (zzzzn) of Clause (10