IMPORTANT POINT
Review jurisdiction is not an avenue for re-argument or appeal; it is confined to correcting errors apparent on the face of the record or addressing new evidence that was not available at the time of the original decision.

JUDGMENT :

SHEKHAR B. SARAF, J.

Civil Misc. Delay Condonation Application No. 301923 of 2010

1. I have perused the affidavit accompanying the delay condonation application and find that sufficient cause has been made out for condoning the delay in filing the review application. Accordingly, the delay in filing the review application is condoned.

2. The delay condonation application is allowed.

Review Application

3. The instant review application preferred by the Commissioner Trade Tax, U.P., Lucknow (hereinafter referred to as the ‘Respondent’) arises out of an order dated February 15, 2010 passed by this Court in STRE No. 225 of 2002.

FACT

4. I have outlined the brief facts leading up to the instant review application below:

a. In STRE No. – 225 of 2002, the main question raised by M/S Tata Steel Ltd. (hereinafter referred to as the ‘Revisionist’) was “whether in view of the definition of ‘purchase price’ under Section 2(gg) of the Uttar Pradesh Trade Tax Act, 1948 (hereinafter referred to as the ‘UPTTA, 1948), the applicant having paid the amount of Rs. 5,56,81,000/-also for the purchase of plant and machinery, apparatus and equipment, the same ought to have been included in the ‘Fixed Capital Investment’ and the Trade Tax Tribunal was not justified in disallowing the said amount merely on the ground that the amount has been allowed as MODVAT under the Central Excise Act, 1944 (hereinafter referred to as the ‘CEA, 1944). Other questions were also raised with regard to MODVAT allowed by the excise department.

b. The aforesaid question was answered by this Court vide its order dated February 15, 2010 in favour of the Revisionist.

c. Against the order dated February 15, 2010 passed by this Court, the Respondent preferred a Special Leave Petition under Article 136 of the Constitution of India before the Hon’ble Supreme Court.

d. The aforesaid Special Leave Petition was dismissed as not pressed by the Hon’ble Supreme Court vide its order dated September 9, 2010.

e. The Respondent filed the instant review application before this Court assailing the order dated February 15, 2010 passed by this Court.

CONTENTIONS OF THE RESPONDENT

5. Shri B.K. Pandey, learned Additional Chief Standing Counsel has made the following submissions:

i. The relevant law which was laid down by the Hon’ble Supreme Court in the case of Collector of Central Excise, Pune & Ors. v. Dai Ichi Karkaria Ltd. 1999 (33) RLT 899 (SC) could not be pointed out at the time of argument before this Court.

ii. The Hon’ble Supreme Court in the aforesaid case has observed that the expression “actual value” should be construed in a sense which commercial men would understand. In absence of a sttatutory definition for determining the “actual value”, the rule of accountancy has to be adopted. MODVAT credit has to be excluded from the value of capital goods as per the guidance note dated March 16, 1995 issued by the ICAI. The same principle also applies in the present case and MODVAT has to be excluded while determining the actual investment made by the dealer in plant and machinery.

iii. A similar controversy came up before the Hon’ble Supreme Court in Commissioner of Trade Tax v. M/s Kajaria Cements Ltd. (2005) 11 SCC 149 while considering fixed capital investment for grant of exemption under notification dated February 21, 1996. The Hon’ble Supreme Court relied upon “purchase price” as defined under Section 2(gg) of the UPTTA, 1948.

iv. The law of the land as propounded by the Hon’ble Supreme Court in the aforementioned judgments could not be placed before this Court, hence the present review application is being filed herewith for kind consideration before this Court.

v. On the facts and circumstances stated above, it is absolutely necessary in the interest of justice that the judgment passed by this Court on February 15, 2010 be reviewed, and the present application filed by the Respondent be allowed and the appropriate order be passed in accordance with law, otherwise the Respondent would suff