2016 (1) TMI 914 - SC - Customs

Maintainability of appeal before Apex Court - Challenge to the order passed by the High Court dismissing the review application on merit as well as delay - Earlier HC had dismissed the writ petition - Claim of refund - period of limitation - appellant contended that assessment was provisional and hence, it remained provisional for all purposes and on finalisation of assessment under Section 18(2) of the Act if refund is due, then it was obligatory on the part of the customs authorities to refund the amount without applying the provisions contained in Section 27 - appellant claimed 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. Held that - It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent. - the appeal, being not maintainable, stands dismissed. - Decided against the appellant.

Summary

Issues Involved:
1. Delay in filing the application for review.
2. Applicability of Section 27(2) of the Customs Act, 1962 for refund claims.
3. Maintainability of the appeal against the order rejecting the review application.

Detailed Analysis:

1. Delay in Filing the Application for Review:
The High Court declined to condone the delay of 129 days in filing the application for review, stating that the application was devoid of merit. This decision led to the dismissal of the review application.

2. Applicability of Section 27(2) of the Customs Act, 1962 for Refund Claims:
The appellants filed for a refund of excess provisional customs duty under Section 18(2) of the Customs Act, 1962. The Assistant Collector of Customs directed the appellants to comply with Section 27(2) of the Act. The appellants contested that Section 27(2) was not applicable and insisted on a refund under Section 18(2)(a). The High Court, however, held that the refund claim under Section 18(2) should be processed without applying Section 27 if the assessment was provisional. Despite this, the High Court dismissed the writ petition, citing unjust enrichment as the appellants had passed on the duty incidence to customers.

3. Maintainability of the Appeal Against the Order Rejecting the Review Application:
The respondents raised a preliminary objection that the appeal should be dismissed as not maintainable since the main order (writ petition dismissal) was not challenged. The Supreme Court examined various precedents, including Durga Shankar Mehta v. Thakur Raghuraj Singh and Thungabhadra Industries Ltd. v. Government of Andhra Pradesh, which discussed the plenary jurisdiction under Article 136 of the Constitution. The Court noted that the principle established in prior cases was that if the main judgment is not assailed, the challenge to the review order alone is not maintainable. The Court upheld this principle, emphasizing consistency and the rule of finality in judicial pronouncements.

The Supreme Court concluded that the appeal was not maintainable as the main order was not challenged, and dismissed the appeal without costs.