2009 (2) TMI 477 - HC - Customs

Remission of duty - remission of duty is the catchword of Section 23 - word remission presupposes levy of duty first and thereafter remission thereof - Since there was an exemption on duty, no question of remission arise Strictures against petitioner cost awarded to Customs Dept. Petitioner-appellant moving different writ applications one after another on different pretext with central lis of demand notice and its effect, gross abuse of process has been caused Appellant used machinery of High Court as a liver to resist the demand Customs Authority, which lawfully has been confirmed Appellant liable for payments of cost due to such conduct

Issues Involved:

1. Res Judicata
2. Validity of the Demand Notice
3. Pre-deposit Requirement
4. Remission of Duty under Section 23 of the Customs Act, 1962
5. Abuse of Process of Law

Issue-wise Detailed Analysis:

1. Res Judicata:
The appeal challenged the dismissal of a writ application on the ground of res judicata. The court noted that the same notice dated 16th March 2001, which was under challenge, had been the subject of an earlier writ application (No. 613 of 2001) that was disposed of with certain directions. The court concluded that the present writ petition was not based on an independent cause of action but was a continuation of previous litigations, thus barred by the principle of res judicata. The court stated, "Since the petitioner has moved several writ petitions within the same cause of action and obtained certain orders, it is no more open to it to move a fresh writ petition against another part of the petitioner cannot claim that it would be a fresh cause of action as and when the respondent authority will attempt to realise the demand on account of its not being stayed."

2. Validity of the Demand Notice:
The petitioner challenged the demand notice dated 15th June 1998, issued under Section 28(3)(ii) of the Customs Act, 1962, and Section 11A(3)(ii)(b) of the Central Excise Act, 1944. The court found that the demand notice was confirmed by an order dated 18th December 1988, which was upheld by the Commissioner of Customs (Appeal) and the CEGAT. The court held that the issuance of the notice dated 16th March 2001 was a follow-up action of the original demand notice and not an independent cause of action.

3. Pre-deposit Requirement:
The court discussed the pre-deposit requirement under Section 35 of the Customs Act, 1962, for maintaining an appeal. The petitioner had sought a waiver of the pre-deposit, which was partially granted by the CEGAT, directing a deposit of Rs. 5 crores. Subsequent writ petitions led to an interim order allowing the petitioner to deposit 25% of the duty and secure another 25% by bank guarantee. The court noted that the petitioner failed to comply with these conditions, leading to the dismissal of the appeal by the CEGAT. The court stated, "It is not contended that the petitioner had deposited 25% and furnished the bank guarantee for 25% of the duty and the CEGAT has stayed the realisation."

4. Remission of Duty under Section 23 of the Customs Act, 1962:
The petitioner raised a new point during the appeal, claiming that an application for remission of duty under Section 23 of the Customs Act, 1962, was filed but not disposed of. The court found that this point was not pleaded in the writ application and noted that the goods were imported on exemption from customs and excise duties, thus making the remission provision inapplicable. The court stated, "Since there was an exemption on duty, no question of remission would arise."

5. Abuse of Process of Law:
The court concluded that the petitioner's repeated filing of writ applications on the same cause of action constituted an abuse of the process of law. The court emphasized that the petitioner used the judicial machinery to resist the lawful demand of the Customs Authority. The court imposed a cost of Rs. 50,000 on the petitioner for such conduct, stating, "Considering all aspects of the matter and having regard to the conduct of the writ petitioner-appellant about moving different writ applications one after another on different pretext with central lis of demand notice and its effect, a gross abuse of the process has been caused."

Conclusion:
The court dismissed the appeal, confirmed the judgment under appeal, and imposed a cost of Rs. 50,000 on the petitioner for abusing the process of law. The court modified the impugned judgment by quashing the portion that kept all points open.

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