1. SAEEDUZZAMAN SIDDIQUI, J.--The petitioner has challenged the orders, dated 2-12-1979, 15-4-1980 and 6-8-1980 passed by respondents Nos.1 to 3 as without lawful authority and of no legal effect.
2. The facts of the case in brief are as follows:-- That in or about July, 1976 the petitioner imported 23 Pallets of Shuttering Boards from Denmark for a total sum of Danish Krons 175,468.30. When this consignment arrived at Karachi, the petitioner through their clearing agent submitted a bill of entry for payment of import duty and sales tax. In the bill of entry submitted on behalf of the petitioner by their clearing agent the value was shown as D.M. 175,468.30 C&F instead of Danish Krons 175,468.30 C&F. The port of shipment was also through inadvertence mentioned in the bill' of lading as Hamberg instead of Copenhagen, Denmark. As the value of the. Consignment was mentioned as D.M. (Deutsch Marks) it was converted into rupees amounting to Rs.15,90,785 and on this amount customs-duty and sales tax were recovered by the Customs Department. The contention of the petitioner is that as a result of this mistake they paid excess amount of Rs.9,54,827 by way of customs-duty and sales tax. This error in the calculation was, however, detected by the petitioner when their accounts were audited and they received a letter, dated 1-11-1979 from their Auditor M/s. A.S. Furgosen & Co. The petitioner immediately on 9th November, 1979, filed an appiication before respondent No.1 praying for refund of the above amount and condonation of the delay. Respondent No.1, however, passed the following order on the representation of the petitioner:-- "I have gone through the record of the case and find that the duty was paid on 9-12-76 and claim was filed on 24-11-79. The claim has been filed after the expiry of statutory period of 4 months. The claim is therefore rejected as time-barred under section 33 of Customs Act, 1969.
3. Sd/- (Assistant Collector of Customs, Import Refund)."
4. The petitioner then submitted an appeal before the Collector of Customs but he also rejected the same holding the claim of the petitioner as time-barred. The petitioner finally submitted a revision application before respondent No.3 but this too was dismissed as respondent 3 was of the view that delay in filing the claim was abnormal.
5. Mr. Liaquat Merchant, learned counsel for the petitioner submitted at the hearing of this petition that the orders of respondents 1 to 3 are arbitrary as respondents did not apply their minds to the grounds and submissions of the petitioner raised in support of condonation of delay in filing the claim before them. It is submitted by the learned counsel that under section 224 of the Customs Act the Federal Government, the Board or appropriate officer of the Customs upon being approached by an aggrieved party if satisfied that the delay was beyond the control of the applicant and that by granting such extension there is a possibility of some loss or hardship to the applicant being mitigated or prevented, may extend time limit laid down in any section. It is urged by the learned counsel that it was a clear case of error of calculation which had resulted in great hardship and which could be mitigated by extending time limit laid down for claiming refund of the amount but the respondents did not apply their mind to this aspect of the case. It is additionally contended by a learned counsel that even otherwise the mistake had occasioned on account of clerical error which could be corrected by the Department under section 206 of the Customs Act and there was no limitation prescribed for such correction. The learned counsel for the respondents on the other hand contended that the contention regarding extension of time in accordance with section 224 of the Customs Act was duly noted by respondents 2 and 3 in their respective orders and they refused to extend the time which necessarily means that they were not convinced with the grounds urged by the petitioner m support of condonation of delay. After hearing the learned counsel for the parties we are of the view that respondents have failed to apply their minds to the grounds urged by the petitioner in support of their application for condonation of delay in filing the claim for refund of the excess amount paid to the Customs department. No doubt the discretion vested in the authorities below to extend or not to extend the time but such discretion could not be exercised in a way which may amount to arbitrariness. From the impugned orders we find that the respondents 1 to 3 did not apply their minds at all while considering the delay occasioned on the part of the petitioner in preferring their claim for refund of the excess amount. We accordingly declare the impugned orders as without lawful authority and of no legal effect but in the circumstances of the case direct that the application of the petitioner for refund of the excess C amount of duty paid by them shall be deemed to be pending which shall be disposed of by the respondents in accordance with law. There will be no orders as to costs in the circumstances of the case.