2013 (9) TMI 730 - HC - Customs

Maintainability of Petition - Release of Foreign Exchange Retained - The petitioner was an accused of the offence of illegal export of currencies of various description Held that - There was a subtle distinction that payment of a redemption fine and penalty was made to get the Indian equivalent of the foreign currency and not as a predeposit of duty for filing the appeal before the Commissioner - Section 129E of the Customs Act provides that a person desirous of appealing against a decision relating to any duty and interest demanded in respect of goods shall pending the appeal deposit with the proper officer the duty and interest demanded or the penalty levied. This was not a case of evasion of duty Section 129E of the Customs Act has no manner of application - It was a settled position of law that a party who had acted in terms of an order cannot challenge the same subsequently. This writ petition must be held to be barred on the further ground of being hit by the principle analogous to res judicata and constructive res judicata - A full bench of the Supreme Court in the case of The Direct Recruit Class II Engineering Officers Association and Ors. Vs.- State of Maharashtra and Ors. 1990 (5) TMI 223 - SUPREME COURT - where the High Court dismissed a writ petition after hearing the matter on the merit a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the parties will be barred by the general principle of res judicata - If in such a case a person was allowed to choose and sue upon one cause of action at one time and to reserve other for subsequent litigation that would aggravate the burden of litigation - This was an abuse of the process of the court - The rule had been referred to as a constructive res judicata which in reality was an aspect of the general principle. In the first writ petition the petitioner had prayed for a writ in the nature of Mandamus commanding the respondents to release the foreign exchange seized and the Indian currency and return the redemption fine and penalty respectively deposited by the petitioner etc. - In the present writ petition also the petitioner had made the same prayer seeking a Mandamus commanding the respondents to release the foreign exchange retained by the respondents authorities and for other reliefs there was sufficient merit in the preliminary objection by the respondents regarding the maintainability of the writ petition - It will not be proper to admit the petition.

Issues Involved:
1. Maintainability of the writ petition.
2. Confiscation of foreign currency and Indian currency.
3. Implementation of the revisional authority's order.
4. Application of res judicata and constructive res judicata.
5. Petitioner's right to appeal after paying redemption fine and penalty.
6. Doctrine of election and estoppel.

Detailed Analysis:

Maintainability of the Writ Petition:
The respondents raised a preliminary objection regarding the maintainability of the writ petition, arguing that it is barred by principles analogous to res judicata and constructive res judicata. The petitioner argued that the payment of redemption fine and penalty does not foreclose the right to appeal or pursue other legal remedies, citing various precedents to support the contention that the writ petition is not barred by res judicata or accord and satisfaction.

Confiscation of Foreign Currency and Indian Currency:
The petitioner was accused of illegal export of various currencies and was caught with undeclared bank cheques and drafts. The Joint Commissioner of Customs confiscated the goods and allowed redemption fine and penalty. The Commissioner of Customs (Appeal) reduced the amounts, but the Joint Secretary, Ministry of Finance, restored the original fine and penalty, directing the release of the Indian equivalent of the foreign currency after deductions.

Implementation of the Revisional Authority's Order:
The petitioner sought the release of the foreign currency and the implementation of the revisional authority's order. Despite court orders, the respondents did not return the full equivalent amount of Indian currency, leading to the filing of multiple writ petitions. The court directed the customs authorities to pay the equivalent amount of seized currency in Indian currency within a specified period.

Application of Res Judicata and Constructive Res Judicata:
The respondents argued that the writ petition is barred by res judicata and constructive res judicata, as the petitioner had already acted in terms of the order by paying the redemption fine and penalty. The court agreed, citing precedents that a party who has accepted an order cannot subsequently challenge it. The principle of res judicata applies when a matter has been adjudicated by a competent court and is binding unless reversed on appeal.

Petitioner's Right to Appeal After Paying Redemption Fine and Penalty:
The petitioner contended that paying the redemption fine and penalty does not foreclose the right to appeal or other legal remedies. The court, however, found that the petitioner, having complied with the order by paying the fine and penalty, cannot subsequently challenge the same. The doctrine of election and estoppel bars the petitioner from approbating and reprobating the same order.

Doctrine of Election and Estoppel:
The court emphasized the doctrine of election, which prevents a party from accepting and rejecting the same instrument. The petitioner, having sought the implementation of the order and paid the redemption fine, cannot now challenge the order. The court cited various precedents to support this principle, stating that a litigant who has taken the benefit of a decision is estopped from questioning its validity.

Conclusion:
The writ petition was dismissed on the grounds of maintainability, being barred by principles analogous to res judicata and constructive res judicata, and the doctrine of election and estoppel. The court held that the petitioner, having complied with the order by paying the redemption fine and penalty, cannot subsequently challenge the same. The preliminary objection by the respondents succeeded, and the writ petition was dismissed with no order as to costs.

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