- (1.) The present appeal is directed against the judgment and order dated 14.09.2004 passed by the Division Bench of the High Court of Judicature at Bombay in Notice of Motion No. 62 of 2004 in Review Petition (Lod) No. 6 of 2004 in Writ Petition No. 71 of 1993 whereby the High Court while dealing with an application of review has declined to condone the delay of 129 days in preferring the application for review and also opined that the application for review was totally devoid of merit. The expression of the said view led to dismissal of the application for review.
(2.) The facts lie in a narrow compass. The appellants filed an application for refund of excess provisional customs duty amounting to Rs. 39,71,412/- which was claimed under Section 18(2) of the Customs Act, 1962 (for brevity, "the Act"). After the application was submitted, the 2nd respondent i.e., Assistant Collector of Customs by letter dated 01.06.1992 communicated that the claim of the appellants was filed under the provisions of Section 27(2) of the Act and it was required to comply with the formalities envisaged under the said provision. The appellants reiterated their stand that Section 27(2) was not applicable and prayed for refund of the amount along with interest. However, as nothing effective ensued, the appellants, left with no option, filed a writ petition before the High Court of Bombay assailing the memo dated 23.12.1991 and letter dated 01.06.1992 which had required the appellants to apply for refund under Section 27(2) of the Act. During the pendency of the writ petition the 2nd respondent passed an ex-parte order dated 04.12.1992 dismissing the claim of the refund under Section 27 of the Act and opined that the claim was inadmissible.
(3.) In the mean time, as the factual matrix would undrape, the Act was amended and Explanations were added to Section 27 of the Act. Placing reliance on the various aspects it was highlighted before the Division Bench of the High Court that the rejection of the application for refund was absolutely unsustainable. It was also urged that the refund was rightly claimed under Section 18(2)(a) of the Act inasmuch as Section 27 was remotely not applicable.;