2009 (2) TMI 104 - HC - Customs

Writ application was dismissed on the ground of res-judicata - learned trial Judge was absolutely right to reject the writ application as both the prayers as made were already decided in earlier writ applications - It is not only attracted by the principle of res-judicata but a gross abuse of the process of law for which the petitioner is liable to pay the cost of the proceeding - action of the appellant is also an contemtuous action under criminal contempt concept in view of filing of the repeated writ applications on the identical cause of action - present writ application is nothing but an abuse of the process of law

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

Detailed Analysis:

1. Principle of Res Judicata:
The primary issue in this case was whether the writ petition was barred by the principle of res judicata. The court noted that the impugned notice dated 16th March 2001, challenged in the current writ petition, was already the subject of earlier writ petitions. The court observed that the notice was a continuation of previous actions, and the petitioner had already obtained relief in earlier proceedings. Therefore, the current writ petition was barred by res judicata as it arose from the same cause of action.

2. Validity of Demand Notice:
The petitioner challenged the validity of the demand notice dated 15th June 1998, arguing that it was barred by limitation under Section 28 of the Customs Act, 1962, and Section 11A of the Central Excise Act, 1944. The court found that the demand notice was confirmed by the order dated 18th December 1998, and the petitioner had already appealed against this order. The court held that the demand notice was valid and enforceable as the petitioner had not complied with the pre-deposit requirement for the appeal.

3. Pre-deposit Requirement:
The court discussed the requirement of pre-deposit under Section 35 of the Customs Act, 1962, for the maintainability of the appeal before the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). The petitioner had been directed to deposit Rs. 5 crores as a pre-condition for hearing the appeal. Despite multiple opportunities and interim relief granted by the High Court, the petitioner failed to comply with the pre-deposit requirement. Consequently, the appeal before CEGAT was dismissed for non-compliance, and the court upheld this dismissal.

4. Remission of Duty under Section 23 of the Customs Act, 1962:
The petitioner raised a new point during the appeal, arguing for remission of duty under Section 23 of the Customs Act, 1962, due to the destruction of goods by fire. The court held that this section was inapplicable as the petitioner had imported the goods under an exemption from customs and excise duty. Since no duty was initially levied, the question of remission did not arise. Furthermore, this issue was already addressed in the appeal before CEGAT, which had been dismissed.

5. Abuse of Process of Law:
The court found that the petitioner had filed multiple writ petitions on the same cause of action, which constituted an abuse of the process of law. The court noted that the petitioner used the judicial machinery to resist the demand of the customs authority unlawfully. The court held that this conduct was contemptuous and warranted the imposition of costs. The appeal was dismissed with a cost of Rs. 50,000 to be paid to the respondent-customs authorities within two months.

Conclusion:
The court dismissed the appeal, confirming the judgment under appeal except for the portion that kept all points open, which was quashed. The petitioner was found to have abused the process of law and was ordered to pay costs. The court upheld the principle of res judicata, validated the demand notice, enforced the pre-deposit requirement, and rejected the plea for remission of duty.

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