UNION OF INDIA Vs. B SORABJEE

JUDGEMENT

(1.) THIS appeals is filed by the Union of India and the Customs authorities against the order of jahagirdar, J. dated 21st January, 1987 whereby he directed them, upon the writ petition purported to be filed by M/s. B. Sorabjee, to refund the amount "due to them as per Exhibit 'e' do the petition". Exhibit E to the petition was a statement that the refund amount of Rs. 28,609,05 was due on the bill of entry whose date and number was set out. The order was passed by jahagirdar, J. following the judgment of Pendse, J. in writ Petition No. 2840 of 1986, reported in 1987 (27) ELT 617 (Bom.) (Raman Kantilal Bhandari v. Union of India ). The Judgment of pendse, was upheld by a Division Bench (Appeal No. 24 of 1987, Union of India v. Raman kantilal Bhandari, decided on 26th July, 1990 by Mookerjee, C. J. and S. P. Bharucha, J. ). In normal circumstances, therefore, this appeal would have failed.

(2.) THE circumstances here are far from normal.

(3.) WE have before us an affidavit filed in the appeal by Yudhvir Singh Shahrawat, Assistant collector of Customs. It state that while investigating other cases of refund of additional duty of customs on alcohol and carrying out as search of the residence of one Kumar Prabhulal Shah and his employees, material relevant to the present writ petition was discovered. The aforesaid bill of entry had been filed by M/s. B. Sorabjee, a partnership firm which had its force at Parvex Lodge, khar, 16th Road, Bombay. On 16th November, 1987 a partner of M/s. B. Sorabjee and Co. , by name Malcolm M. Mowdawala, had made a statement before the customs authorities. He stated that the aforesaid bill of entry had been filed by his firm by denied that his firm had filed a writ petition for refund of the additional duty of customs paid in respect thereof. He stated that no refund of such additional customs duty had been received by him. On 7th and 10th October, 1988 the said Kumar Shah had made statements before the Customs authorities. He stated that he had filed the present writ petition in the name of M/s. B. Sorabjee and had shown one Harshad jayantilal Shah as its some proprietor and its office at Raut Chambers, Samuel Street, Wadgadi, bombay. He had received the refund of Rs. 28,609. 05 that was ordered to be made the order under appeal. The affidavit of Shahrawat added that the customs authorities had in February, 1988 seized from the premises of the said Kumar Shah the original of the writ petition that was lodged and filed in this court and which ought to have been in this court's records. (We shall now refer to it as "the original writ petition. ") The affidavit prayed that the respondents to the appeal should be directed to deposit the sum of Rs. 28,609. 05 with further interest at 15% per annum from 10th April, 1987.