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Md. Noman Alam Son of Late Md Moinuddin R/o-Mohalla Custom Road, Bengal Enterprises Versus The Union of India And Others

2016 (1) TMI 1001 - PATNA HIGH COURT

The present writ application, in fact, has been filed after almost eight months of the aforesaid dismissal of the review application on the ground that only on 07.09.2010 the petitioner could get a copy of the release order of sale of consignment of the petitioner dated 04.08.2005 which according to him had given him new cause of action for the relief sought in this writ application.

This Court however fails to understand as to how the present writ application can be held to be maint .....

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lications one before the Division Bench and another before the learned single Judge of this Court, have been dismissed on the same issue.

This writ application is, accordingly, dismissed with a cost quantified at ₹ 10,000/- which must be deposited by the petitioner in the Patna High Court Legal Services Authority. - Civil Writ Jurisdiction Case No. 2848 of 2011 - Dated:- 26-11-2015 - Mihir Kumar Jha, J. For the Appellant : Mr. Yogendra Mishra, Adv For the Respondent : Mrs. Archa .....

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ce thereof adjusting the penalty of ₹ 25,000/- within a time frame, be issued." 3. Before the learned counsel for the petitioner could make his submissions, a preliminary objection was raised by the learned counsel for the respondents as with regard to maintainability of the present writ application on the ground that the petitioner's earlier writ application, C.W.J.C. No. 12114 of 2006, for an identical relief had not only been dismissed by the learned single Judge of this Court .....

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counsel for the petitioner, while meeting the aforementioned preliminary objection, has submitted that the relief sought in the earlier writ application was for different purpose and, therefore, the present writ application being for a separate and different relief cannot be held to be either hit by the principle of res judicata or constructive res judicata much less to be not maintainable. In this regard, he has placed reliance not only on the judgment of the Apex Court in the case of Amalgama .....

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has to be kept in mind that a consignment of the petitioner was subjected to seizure by the authorities of the Customs Department on 12.06.2001 and the Joint Commissioner of Customs in exercise of power under Section 122 of the Customs Act (hereinafter referred to as 'the Act') had directed for confiscation of the seized goods under Section 111(b) of the Act wherein an option was given to the owner of the goods under Section 125 of the Act to redeem the seized goods on payment of redempt .....

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stoms Act, 1962 to redeem the seized goods on payment of redemption fine of ₹ 75,000/- in lieu of confiscation. This option is to be exercised within one month of issue of the order. However, the release of goods to be done on payment of penalty amounts to the notice. I order for confiscation of the seized truck under Section 115(2) of Customs Act, 1962. However, since the truck hs been released provisionally on bond, on deposition of cash security of ₹ 25,000/-. I offer an option un .....

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Sri Ashok Kr. Singh Partner of Transport Co. 10,000/- Sd/- (P.K.Mishra) Joint Commissioner of Customs, Patna. 6. It is a matter of record that the petitioner as against the order dated 15.07.2003, had filed an appeal before the Commissioner of Customs and in that appeal, a prayer was made for waiver of the pre-deposit of penalty, as imposed by the original authority to the tune of ₹ 25,000/- against him. The Commissioner, in his interim order dated 21.09.2003, had, therefore, only passed .....

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ion of delay of 12 days in filing appeal, as the delay had occurred due to flood in the village of appellant. He further stated that goods were purchased in and around raxaul and were being sent to Gorakhpur. Hence, act of smuggling is not proved. Any order of pre-deposit will cause hardship to the appellant. Hence, he requested for waiver of predeposit of penalty. 3. I have carefully considered the matter. In the circumstances of case delay caused in filling appeal is condoned and appeal is to .....

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ither the petitioner had deposited the redemption amount of ₹ 75,000/- nor he had made any prayer before the appellate authority for extending the period of one month in which such redemption amount for redeeming the seized goods was offered to the petitioner under the order of the original authority dated 15.07.2003. Thus, when the petitioner himself did not exercise the option given by the original authority of redeeming the seized goods within a period of one month nor had he even filed .....

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in this regard. Moreover, it is observed from perusal of case records that the covering transport document i.e. Invoice No. 4, dated 12-06-2001, which was found accompanying the entire consignment, was of only 9500 kg. whereas the actual weight of goods was found to be 17,500/- kg. and for the said huge difference, no palatable reasons have been given. Further, it is said that the said consignment was consigned to a party of Gorakhpur namely M/s Naveen Traders, Gorakhpur but when the authoritie .....

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acie doubt is sufficient to shift the onus to the appellant. (AIR 1949 Madras 116 in Narasinga Muithu Chettiar). Since the appellant ahs failed to discharge the onus cast on him, I don not see any merit in the present appeal. 7. In view of foregoing, I do not find any reason to differ with the findings of the Adjudicating Authority. Accordingly, I reject the appeal of the appellant as devoid of merit. Sd/- (I.P.Lal) Commissioner (Appeals) Customs & Central Excise Patna. C.No. S.5-172/2003-CA .....

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I find that when this case was posted on 2/1/06, 3/1/06, 4/1/06, 5/1/06 and today also none is present for the appellant. I dismiss the appeal for non-prosecution. Incidentally, I find that earlier this case was also dismissed for non-prosecution on 2/06/2005." 9. From the averments made in this writ application and the documents enclosed thereto, it will also become clear that the petitioner had again filed another application for restoration before the Tribunal, but such application for .....

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nt to be noted here is that after the petitioner had lost up to the Tribunal, he had filed an application for redeeming the seized goods, in view of the order dated 15.07.2003, by filing an application before the Deputy Commissioner, Customs, Motihari on 15.05.2006, wherein it was stated that since the appeal of the petitioner had been rejected by the Tribunal on 10.03.2006, he had no other remedy but to deposit the amount of redemption and penalty and as such necessary order should be passed. 1 .....

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terms of the order of original authority dated 15.07.2003. 12. In the counter affidavit that was filed by the respondents, it has been stated that when the petitioner did not redeem the seized goods within the period prescribed of one month as directed in the order of the original authority dated 15.07.2003, and did not avail the offer in terms of Section 125 of the Act, those goods were auction sold. 13. At that stage, the petitioner had also assailed such auction in C.W.J.C No. 12114 of 2006 f .....

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icles but it was refused as the seized goods have already been auction sold by the respondent authorities. Counsel for the petitioner submits that no notice was given to the petitioner before the auction sale of the seized articles. The articles which were seized valued at ₹ 3,50,000/- at the time of seizure were sold just for ₹ 402. It has also been stated that since the petitioner was pursing his alternative remedy before the appropriate forum the respondents should not have auctio .....

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er the dismissal of the revision the articles seized vested with the Central Government under Section 126 of the Customs Act. Petitioner lost his entitlement for retaining the seized articles after it vested in Central Government. The respondents thereafter auctioned sold articles and it cannot be said that they have committed any illegality or jurisdictional error. In this view of the matter petitioner cannot take a plea that the auction sale has been done by the respondents either in violation .....

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e the Division Bench seeking the review of the order passed in LPA No. 480 of 2007 which also was dismissed. It was only after that, the petitioner had filed the review application before the learned single Judge seeking review of the order dated 30.04.2007 in C.W.J.C. No. 12114 of 2006 which also was dismissed by an order dated 12.05.2010 wherein it was held as follows: Heard counsel for the petitioner and the Union of India. The review application has been filed for reviewing the order dated 3 .....

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ation, was never raised in the writ application, so it cannot be said that any of the point raised by the petitioner was not considered and in this circumstance the order needs to be reviewed. For the reasons stated in the application, this review application is dismissed. Petitioner may seek his remedy before any other forum, if available. 15. The present writ application, in fact, has been filed after almost eight months of the aforesaid dismissal of the review application on the ground that o .....

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o uncertain terms by this Court in the order dated 30.04.2007 in C.W.J.C No. 12114 of 2006, wherein it was categorically held as follows: "Petitioner lost his entitlement for retaining the seized articles after it vested in Central Government. The respondents thereafter auctioned seized articles and it cannot be said that they have committed any illegality or jurisdictional error. In this view of the matter petitioner cannot take a plea that the auction sale has been done by the respondents .....

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er of fact, the order of the learned single Judge having merged with the order of the Division Bench in the order dated 08.10.2007 in LPA No. 480 of 2007, this writ application must be held to be barred by both the principles of res judicata and constructive res judicata. 18. By now also, it is well settled that the principles of res judicata is very well applicable to the proceedings under Article 226 of the Constitution of India. Reference in this connection may be usefully made to the judgmen .....

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t it would not be open to a party to ignore the said judgment and move this Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. This principle was again reiterated in the case of Ashok Kumar @ Golu v. Union of India & Ors. reported in (1991) 3 SCC 498, wherein it was held that it would not be open to the petitioner to reopen the challenge on the "specious plea" that a particular argument was not put forward be .....

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r Art. 226 where the dispute raised is in respect of a year different from the year involved in a prior dispute decided by this Court ? We have already noticed the points actually decided by this Court against the appellants on the earlier occasion (vide Amalgamated Coalfields Ltd., 1962-1 SCR 1: (AIR 1961 SC 964). One of the points sought to be raised was in regard to the validity of the increase in the rate of tax from 3 pies to 9 pies per ton; and since this point had not been taken in the pe .....

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o be barred by constructive res judicata. It is significant that the attack against the validity of the notices in the present proceedings is based on grounds different and distinct from the grounds raised on the earlier occasion. It is not as if the same grounds which was urged on the earlier occasion is placed before the Court in another form. The grounds now urged are entirely distinct and so, the decision of the High Court can be upheld only if the principle of constructive res judicata can .....

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petitions on the ground of res judicata, the High Court has no doubt referred to Art. 141 under which the law declared by this Court is binding on all Courts within the territory of India. But when we are considering the question as to whether any law has been declared by this Court by implication, such implied declaration, though binding, must be held to be subject to revision by this Court on a proper occasion where the point in question is directly and expressly raised by any party before th .....

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e Apex Court in the case of the same petitioner namely Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara. What would still make this judgment inapplicable, at least to the proceedings in the High Court, is that the Apex Court itself had held that the High Court was justified in dismissing the writ application of Amalgamated Coalfields Ltd.(supra) inasmuch as, it was held to be bound by the earlier judgment of the Apex Court but that was not binding on the Apex Court. Therefore, the under .....

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cial power under Article 142 of the Constitution of India. 22. This Court in fact would also find no applicability of the judgment of the Apex Court in the case of SHILPS IMPEX VS UNION OF INDIA reported in 2002 (140) E.L.T. 3 (S.C.), inasmuch as, that was a case wherein the Apex Court had passed an interim order that once the petitioner had deposited the amount of duty, redemption and fine, he was entitled to get back the value of the goods which had disappeared from the possession of Custom De .....

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eal of the petitioner on 06.01.2006. It is this factual aspect which will make this Court to hold that the observations made in the interim order of the Apex Court in the case of SHILPS IMPEX(supra), laying down infact no law cannot be made applicable. From the reading of the interim order in the case of Shilps Index (supra), it would become clear that in that case the amount of redemption was already paid by the authorities of the Customs Department, unlike in the present case, where the petiti .....

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titioner on auction sale on 04.08.2005, on a date on which no proceeding before any authority or Tribunal was pending, can be said to be contrary to the provisions of Customs Act. As a matter of fact, the petitioner for the first time had offered to pay the redemption amount by filing an application on 15.05.2006, after its appeal was dismissed by the Tribunal on 06.01.2006 but, much that the goods were already auction sold by the department on 04.08.2005. 25. It is here that the principle of re .....

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Patent Appeal as also Special Leave Petition and further stand affirmed by dismissal of two review application both by the Division Bench and the learned Single Judge as discussed above, this Court sitting singly, cannot now allow the petitioner to re-open the whole thing, inasmuch as, that by itself would be against the settled principles of res judicata. 26. Yet another plea that notice was required to be issued to the petitioner before auction sale is also fully covered by the judgment of the .....

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