TMI Blog1978 (4) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the Assistant Collector was not justified in commencing fresh adjudicatory proceedings against the respondent - we allow the appeal, set aside the order of the High Court - C.A. 363 OF 1978 - - - Dated:- 26-4-1978 - Judge(s) : S. MURTAZA FAZAL ALI., JASWANT SINGH., R. S. PATHAK JUDGMENT The judgment of the court was delivered by FAZAL ALI J.--This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court dated 19th November, 1976, by which the High Court quashed the notice dated 27th July, 1972, issued by the Assistant Collector of Customs and also quashed fresh adjudication proceedings started by him under the provisions of the Customs Act (hereinafter referred to as " the Act "). The appeal lies within a very narrow compass and turns upon the interpretation of the order passed by the appellate authority under section 128 of the Act. On 27th February, 1969, the respondent, Pratap Rai was detained at Jabalpur by the Customs authorities while he was travelling by the Bombay Janata Express. On being searched, as many as 23 wrist watches on which no customs duty was paid were recovered from his person. Thereafter, adjudication proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d merely vacated the order of the Assistant Collector because it suffered from a technical infirmity and had not barred the commencement of fresh adjudicatory proceedings. Mr. Naunit Lal appearing for the respondent, however, submitted that there was no clear direction in the order of the Appellate Collector from which it could be inferred that he had remanded the case, and, therefore, there was no jurisdiction in the Assistant Collector to issue a fresh notice or start adjudicatory proceedings against the respondent. In our opinion, the contention of counsel for the appellants appears to be sound and must prevail. A perusal of the order of the Appellate Collector extracted above clearly shows two important facts : (1) that the Appellate Collector has not set aside or vacated the order of the Assistant Collector on merits but has vacated it only on a technical infirmity, namely, the violation of the rules of natural justice and that is why the Appellate Collector has advisedly used the words " without prejudice " in his order, (2) that the Assistant Collector in his order dated 30th June, 1969, had directed confiscation of the watches and imposed a penalty of Rs. 250 and if the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent. The Appellate Collector has clearly used the words " without prejudice " which also indicate that the order of the Collector was not final and irrevocable. The term " without prejudice " has been defined in Black's Law Dictionary as follows : " Where an offer or admission is made ' without prejudice ', or a motion is denied or a bill in equity dismissed ' without prejudice ', it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost, except in so far as may be expressly conceded or decided. See, also, Dismissal without prejudice." Similarly, in Wharton's Law Lexicon, the author, while interpreting the term " without prejudice ", observed as follows : " The words import an understanding that if the negotiation fails, nothing that has passed shall be taken advantage of thereafter ; so, if a defendant offers, ' without prejudice ', to pay half the claim, the plaintiff must not only rely on the offer as an admission of his having a right to some payment. The rule is that nothing written or said ' without prejudice ' can be considered at the trial without the consent of both parties--not even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Board of Revenue, it is not possible to spell out from its terms a precise direction for a de novo enquiry, giving jurisdiction to the Collector, for that purpose." In our opinion, the interpretation put by the Madras High Court does not appear to be correct and is too narrow and does not carry out the object of the Act. The Central Board of Revenue had merely vacated the order without prejudice to the merits of the case which clearly meant that the merits were not decided by it. Secondly, the order impugned in the Madras case does not indicate the ground on which the order was vacated whereas in the instant case the Appellate Collector has expressly stated that the order was vacated because it violated the rules of natural justice. The reason given by the Appellate Collector in the instant case makes all the difference. In these circumstances, therefore, the Madras case being clearly distinguishable as indicated above, we are of the opinion that the view taken by the Madras High Court is of no assistance to the respondent. The case of Marsden Spg. Co. Ltd., ILR [1965] Guj 240, is also clearly distinguishable. In that case the impugned order was extracted thus : " Havi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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