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2013 (9) TMI 730 - HC - CustomsMaintainability of Petition - Release of Foreign Exchange Retained - The petitioner was an accused of the offence of illegal export of currencies of various description – Held that:- There was a subtle distinction that payment of a redemption fine and penalty was made to get the Indian equivalent of the foreign currency and not as a predeposit of duty for filing the appeal before the Commissioner - Section 129E of the Customs Act provides that a person desirous of appealing against a decision relating to any duty and interest demanded in respect of goods shall pending the appeal deposit with the proper officer the duty and interest demanded or the penalty levied. This was not a case of evasion of duty Section 129E of the Customs Act has no manner of application - It was a settled position of law that a party who had acted in terms of an order cannot challenge the same subsequently. This writ petition must be held to be barred on the further ground of being hit by the principle analogous to res judicata and constructive res judicata - A full bench of the Supreme Court in the case of The Direct Recruit Class II Engineering Officers Association and Ors. –Vs.- State of Maharashtra and Ors.[1990 (5) TMI 223 - SUPREME COURT] - where the High Court dismissed a writ petition after hearing the matter on the merit a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the parties will be barred by the general principle of res judicata - If in such a case a person was allowed to choose and sue upon one cause of action at one time and to reserve other for subsequent litigation that would aggravate the burden of litigation - This was an abuse of the process of the court - The rule had been referred to as a constructive res judicata which in reality was an aspect of the general principle. In the first writ petition the petitioner had prayed for a writ in the nature of Mandamus commanding the respondents to release the foreign exchange seized and the Indian currency and return the redemption fine and penalty respectively deposited by the petitioner etc. - In the present writ petition also the petitioner had made the same prayer seeking a Mandamus commanding the respondents to release the foreign exchange retained by the respondents authorities and for other reliefs – there was sufficient merit in the preliminary objection by the respondents regarding the maintainability of the writ petition - It will not be proper to admit the petition.
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