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2016 (1) TMI 1001 - PATNA HIGH COURT

2016 (1) TMI 1001 - PATNA HIGH COURT - 2016 (331) E.L.T. 163 (Pat.) - 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 und .....

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he writ application, appeal, Special Leave Petition and two review applications 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 th .....

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he respondents to either deliver the seized articles or to pay the price 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 .....

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udicata and constructive res judicata. 4. Mr. Yogendra Mishra, learned 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 relia .....

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ned counsel for the respondents, has to be upheld. In this regard, it 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 S .....

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er I offer an option to the owner of the goods under Section 125 of Customs 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 .....

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he goods 25,000/- 05. Sri Surendra Pal Owner of the truck 10,000/- 06. 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 Commissione .....

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03 on behalf of the appellant. Learned Advocate requested for condonation 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 circumstance .....

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& Central Excise Patna 7. It however must be kept in mind that neither 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 redeemi .....

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ul. However, no evidence, what so ever, has been produced or submitted 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 .....

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Moreover, it is well settled law that in quasi-criminal cases prima facie 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) Commission .....

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tribunal by an order dated 06.01.06 by recording as follows: "2) 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 appl .....

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plicant. The Application is rejected. 10. What is still very significant 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 .....

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mounts of ₹ 75,000/- as also the penalty of ₹ 25,000/- in 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 pe .....

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ly he wanted to pay redemption fine and penalty for release of the articles 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 reme .....

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hereafter he again preferred revision which was finally dismissed. After 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 .....

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after, the petitioner is said to have filed a review application before 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. .....

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point which is being raised by the petitioner by filing review application, 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 .....

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auction sale, whose quashing is being sought herein, was approved in no 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 can .....

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e order dated 08.10.2007 dismissing the LPA No. 480 of 2007. As a matter 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 I .....

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the Constitution. 19. The Apex Court, in this regard has also held that 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 " .....

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nciple of constructive res judicata apply to petitions under Art. 32 or 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 pie .....

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n otherwise, the point has not bee considered and should not be held to 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 .....

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ax liability is for different years. In dismissing the appellants' 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 poi .....

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ferent year, other than for which the earlier decision was given by the 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 .....

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Apex Court under Article 141 of the Constitution of India and its special 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 val .....

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the year 2006 and eventually the Tribunal had again dismissed the appeal 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 o .....

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hat the action of the respondent in putting the seized goods of the petitioner 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 .....

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Single Judge has become final on account of dismissal of his Letters 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 petit .....

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