The plenary jurisdiction of the Supreme Court under Article 136 of the Constitution cannot be curtailed by ordinary legislation.

JUDGMENT :

Dipak Misra, J.

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.

4. The main plank of submission before the High Court was that the 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 of the Act. To buttress the said submission, reliance was placed on Collector of Central Excise v. India Tyre and Rubber Co. Ltd., 1977 (94) ELT 495 (Mad.) and Hindustan Metal Pressing Works v. Commissioner of Central Excise, 2003 (153) ELT 15 (SC).

5. The High Court appreciating the factual matrix and the legal submissions came to hold as follows:-

"... while exercising the Writ jurisdiction, if the Writ Court finds that any direction to refund results in unjust enrichment to the Petitioners, then it is open to the Writ Court to decline to exercise its Writ jurisdiction, even though the Petitioner has a right to obtain refund. This reasoning of ours is supported by the Full Bench decision of this Court in the case of New India Industries v. Union of India reported in 1990 (1) B.C.R. 515, as well as the decision of the Apex Court in the case of Mafatlal Industries Ltd. (supra at para 95). In the present case, admittedly, the Petitioners have passed on the incidence of duty to the customers and have recovered the amount due to them. In this view of the matter, we decline to issue Writ in favour of the Petitioners."

Being of the aforesaid view, the High Court dismissed the writ petition. An application for review was filed which met with its Waterloo being barred by limitation and also being devoid of substance.

6. Mr. Yashank Adhyaru, learned senior counsel for the respondents has raised a preliminar