TaxTMI 
TaxTMI 
2016 (1) TMI 914
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....he 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 alongwith 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 unsu....
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....o include provisional assessment and, therefore, the application required to be made under Section 27 for refund including the refund of duty paid under the provisional assessment. On that basis it is canvassed that the authorities were justified in insisting upon the appellants to apply for refund under Section 27 of the Act. On behalf of the revenue reliance has been placed on the decisions in Mafatlal Industries Ltd. v. Union of India 89 ELT 247 (S.C.), Union of India v. Jain Spinners Ltd. 1992 (61) ELT 321 (S.C.), Alcatel Modi Net WSorks Systems v. Commissioner of Customs 2000 (117) ELT 522 (Tribunal) and Kunhyammed v. State of Kerala 2001 (129) ELT 11 (S.C.). 8. Mr. Kavin Gulati, learned senior counsel appearing for the appellants would submit that in view of the trend of recent decisions, namely, Shanker Motiram Nale v. Shiolalsing Gannusing Rajput (1994) 2 SCC 753, Suseel Finance & Leasing Co. v. M. Lata and others (2004) 13 SCC 675, M.N. Haider and others v. Kendriya Vidyalaya Sangathan and others (2004) 13 SCC 677, Shiv Charan Singh v. State of Punjab and others (2007) 15 SCC 370, Ravi alias Ravichandran v. State represented by Inspector of Police (2007) 15 SCC 372, Vin....
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....e invoked by an aggrieved party only by means of an election petition and the decision of the Tribunal was final and conclusive, and, therefore, this Court could not interfere with the said final decision by exercising power under Article 136 of the Constitution. Thus, emphasis was placed on the finality of the decision rendered by the Election Tribunal. Dealing with the said preliminary objection, the Constitution Bench opined thus:- "... The powers given by Article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a court or tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe....
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.... counsel for the respondent therein urging that leave granted by this Court should be revoked. The Court did not permit the respondent to raise the preliminary objection primarily on two reasons, namely, the special leave was granted after notice to the respondent and therefore after hearing the respondent as to any objection to the maintainability of the appeal or to the granting of special leave. It was further observed that the statement of the case filed on behalf of the respondent did not disclose any ground upon which the leave granted should be revoked. The three-Judge Bench in that context observed thus:- "... any ground in relation to these matters should have been urged at that stage and except possibly in some extraordinary cases where the ground urged happens to arise subsequent to the grant of the special leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of due care; except in such circumstances this Court will not permit the respondent to urge any argument regarding the correctness of the order of the Court granting special leave. Indeed, the very object of issuing notice to the respondent before the grant ....
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....er Motiram Nale case. In both those cases it has been held that a special leave petition is maintainable only in the context of it not being barred on principles of res judicata. In both these cases the question whether a special leave petition is against an order disposing of a review petition was not considered at all. These cases therefore have no relevance at all." 16. In M.N. Haider (supra), relying on earlier decisions, it has been held that once the special leave petition is not maintainable no orders/judgments can be passed thereon except to dismiss the same. 17. In Shiv Charan Singh (supra), a two-Judge Bench was dealing with an appeal challenging an order of review. Relying on the decision in Shanker Motiram Nale (supra), this Court dismissed the appeal. 18. In Vinod Kapoor (supra), it has been held thus:- "11. 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 47 Rule 7 CPC. In Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, Suseel Finance & Leasing Co. v. M. Lata and M.N. Haider v. Kendriya Vidyalaya Sangathan cited....
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....noticed, and not accepted. The preliminary objection seems to have been rejected on the ground that since leave has been granted in the special leave petition, it would not be proper to dismiss the same without hearing the parties." And again:- "In the present case, the preliminary objection has been raised at the threshold. In addition, it is an inescapable fact that the judgment rendered in Eastern Coalfields Ltd. has been rendered in ignorance of the earlier judgments of the Benches of co-equal strength, rendering the same per incuriam. Therefore, it cannot be elevated to the status of precedent. ..." 21. Recently in Sandhya Educational Society and another (supra), the Court referred to the decision in Vinod Kapoor (supra) and opined thus:- "This Court in Vinod Kapoor v. State of Goa has categorically observed that once the special leave petition is dismissed as withdrawn without obtaining appropriate permission to file a special leave petition once over again after exhausting the remedy of review petition before the High Court, the same is not maintainable." 22. Having noticed the aforesaid pronouncements, we may now advert to the authority in Thungab....
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.... decision when properly appreciated clearly reveals that it pertains to the stage when objection is to be taken. It does not lay down that a special leave petition against a review petition is maintainable or not. The focus on the stage of taking objection is fact-centric but not principle-oriented. To elaborate, the said decision does not lay down as a principle that the Court is bereft of power to hear on maintainability. If we understand the view expressed therein, it can be said that the Court has been guided by the concept of propriety. In this regard, we may reproduce the statement of law made by Lord Halsbury in the case of Quinn v. Leathem (1901) AC 495:- "...there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it ....
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....tted by Mr. Gulati that the said power is of great magnitude and cannot be controlled by any stature. It has been held in Durga Shankar Mehta (supra) that it is a plenary jurisdiction. In Mahendra Saree Emporium (II) (supra), a three-Judge Bench, in the context of power under Article 136, has held thus:- "The jurisdiction conferred on this Court by Article 136 of the Constitution is a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of judgment or order made by court or tribunal in any case or matter and the jurisdiction can be exercised in spite of other specific provisions for appeal contained in the Constitution or other laws. This article confers on the Supreme Court special or residuary powers which are exercisable outside the purview of the ordinary laws in cases where the needs of justice demand interference by the Supreme Court [see Constitution Bench decisions in Durga Shankar Mehta v. Thakur Raghuraj Singh and Union Carbide Corpn. v. Union of India (1991) 4 SCC 584 (SCC para 58). In Durga Shankar Mehta case the Constitution Bench held that Section 105 of the Representation of the People Act, 1951 wh....