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2018 (7) TMI 17 - HC - Central ExcisePrinciples of constructive res judicata - Validity of Search and Seizure proceedings - prior to the search conducted on 12-4-2012, no search warrant was issued which thus is in total contravention to the provisions of Section 12F of the Central Excise Act - Held that:- Though the petitioners had challenged the search and seizure proceedings in the said writ petition, but the same was not pressed while the petition was being finally disposed of - the fact that the petitioners has not pressed the said relief so far as the veracity of the search and seizure proceedings would by itself means that, they have given up the said relief and were harping more on the relief of the permission to get the witnesses called for cross-examination. Having once given up the relief of the challenge to the search and seizure, the subsequent challenge to the same is not permissible and the petition would be hit by a constructive res judicata, the petitioners would be estopped from filing the fresh writ petition for the same cause of action and on the same grounds - the petition thus would not be maintainable so far as the challenge to the search and seizure is concerned. Opportunity to cross-examine the witnesses - Held that:- Since the appeal preferred by the petitioners assailing the order dated 31-3-2017 already stands allowed in favour of the petitioners vide order dated 11-10-2017 and the matter stands remitted back to the authority concerned - matter on remand. Petition rejected.
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