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2016 (1) TMI 1001
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.... 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 by an order dated 30.04.2007 in C.W.J.C No. 12114 of 2006 but was only affirmed by the Division Bench in a Letters Patent Appeal filed by the petitioner, vide an order dated 08.10.2007 in L.P.A No. 480 of 2007, the Apex Court also has dismissed the Special Leave Petition filed by the petitioner being S.L.P. No. 6662 of 2008, and, therefore, no fresh writ application would lie for the same cause of action on the ground of res judicata 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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....0,000/- 02. Sri Narendra Kumar Khalasi 5,000/- 03. Sri Rajiv Kr. Thakur Agent of the owner of the Goods 15,000/- 04. Sri Numan Alam Owner of the 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 Rs. 25,000/- against him. The Commissioner, in his interim order dated 21.09.2003, had, therefore, only passed an order as with regard to condoning the requirement of deposit of entire penalty of Rs. 25,000/- subject to payment of Rs. 5,000/- by the petitioner, which again would be very clear from the following extract of the aforementioned order dated 21.09.2003 of the appellate authority, relevant portion whereof reads as follows: "2. Shri Radha Raman, Advocate appeared for personal hearing in the stay ma....
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....id 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 authorities concerned tried to ascertain the genuineness of the consignee, the letter sent on their address returned undelivered by the postal authorities. Had it been actually existed, the appellant ought to have produced him to prove his innocence. In the present case, the appellant neither could prove his bona fide from any corners nor came up with cogent reasons for licit possession and transportation or trading of goods in dispute. 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) Commissioner (Appeals) Customs & Central Excise Patna. ....
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....o release the seized goods in his favour by accepting the redemption amounts of Rs. 75,000/- as also the penalty of Rs. 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 petitioner had also assailed such auction in C.W.J.C No. 12114 of 2006 firstly on account of his(petitioner) being given no notice and secondly, on account of his consignment being undervalued by the authorities of Custom Department in auction sale, such submission of the petitioner however did not receive approval of the learned single Judge while dismissing the writ application by judgment and order dated 30.04.2007, wherein, it was held as follows: "Petitioner's case is that subsequently he wanted to pay redemption fine and penalty for release of the articles but it was refused as the seized goods have already ....
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.... application has been filed for reviewing the order dated 30.4.2007 passed in C.W.J.C. No. No. 12114 of 2006. I find that this application is not maintainable for the reason that against the order passed in the writ application petitioner has lost his case before the LPA Bench and also before the Apex Court. He had earlier filed a review application before the LPA Bench. That was also dismissed. In this circumstance the review application is not maintainable. Secondly, I find that the 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 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....
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.... 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 "specious plea" that a particular argument was not put forward before the Court. 20. The reliance placed by the petitioner on the judgment of the Apex Court in the case of Amalgamated Coalfields Ltd. and Anr. v. Janapada Sabha Chhindwara and Ors. reported in AIR 1964 SC 1013 is altogether clearly distinguishable on facts where as would be apparent from reading of para-24, reads as follows: "24. In the present appeals, the question which arises directly for our decision is: does the principle 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 Co....
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....the new contentions on which their challenge against the validity f the notices is based." (underlining for emphasis) 21. Thus, a bare reading of the judgment of the Apex Court in the case of Amalgamated Coalfields (supra), will itself go to show that the Apex Court had entertained the plea because the tax liability for a different 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 Court but that was not binding on the Apex Court. Therefore, the underlined portion of the aforementioned judgment, heavily relied by Mr. Mishra, would itself go to show that the same is more or less is in exercise of power under Article 142 of the Constitution of India, which empowers the Apex Court to pass any order in the interest of justice but then such ....
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.... 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 res judicata will directly come into play in the case of the petitioner inasmuch as, when the petitioner had raised this very issue of illegal auction of his seized property, this Court in the order dated 30.04.2007, had gone to hold that the auction sale done by the respondents was neither in violation of the principles of natural justice nor in violation of the provisions of Customs Acts. Thus, when this finding of the learned 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 p....