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TMI Blog2009 (2) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal has been preferred by the writ petitioner. By the impugned judgment under appeal, writ application was dismissed on the ground of res judicata, in view of the fact that very notice dated 16th March, 2001 being Annexure P-12 of the writ application, which was under challenge in the writ application, was the subject matter of challenge in the earlier writ application being writ Petition No. 613 of 2001, which stood disposed of with certain direction. In the writ application the petitioner prayed for quashing of the instruction dated 16th March, 2001 being an instruction in pursuance of a notice issued under Section 142 of the Customs Act, 1962 read with Section 11 of the Central Excise Act, 1944, directing that any goods belonging to the writ petitioner as would pass through the Customs House may be sold under provision of Section 150 of the Customs Act, 1962 read with Section 11 of the Central Excise Act, 1944 and the amount stated in the demand should be deducted from the sale proceeds. So far as the other relief in the writ praying injunction order restraining recovery of the amount of duty or interest in terms of the demand notice dated 15th June, 1998, learned trial Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 35(f) of the Customs Act, 1962 reducing the demand, against which this Court was moved and the said interim order of 25% deposit and 25% bank guarantee was obtained. Therefore, it is no more upon to the petitioner to come before this Court and obtain an order in respect of the alleged Annexure "P-12" inasmuch as it is the part of the same cause of action, which is being assailed in this writ petition. It does not give rise to set a fresh cause of action to assail the same, in dependent of the cause of action of the appeal pending before the CEGAT and involved in all the writ petitions which were disposed of earlier. Subject matter in any of the earlier writ petitions. Nor it is the subject matter before the CEGAT. This gives rise to an independent cause of action. Therefore, the writ petition is very much maintainable. After having heard the learned counsel for the parties it appears that the writ petitioner had earlier preferred an appeal against the demand dated 18th December, 1998 which is pending. Section 35 of the Customs Act, 1962 requires a pre-deposit before the appeal is taken up for hearing. The petitioner had prayed for waiver of the amount under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id order dated 29th June, 2001 an appeal was preferred on 12th July, 2001. In the appeal an application for stay was filed, which was heard on 13th August, 2001 and 11th August, 2001, but no interim order was granted. The petitioner filed another writ petition being Writ Petition No. 133 of 2002. This writ petition was ultimately dismissed on 8th March, 2002. In view of these, the present writ petition has been filed. The learned counsel for the petitioner however disputes the same and contends that the said writ petition is still pending, it is not necessary to go into those details for the present purpose. It appears that all those writ petitions emanate from the principal cause of action, which arose out of the demand dated 18th December, 1998 and the question of pre-deposit in connection with the appeal before the CEGAT. Cause of action is not a single action. It is a bundle of facts. After interim order was granted for securing 50% of the duty in respect of the pre-deposit, until and unless there is an order of stay, it is open to the custom authority to proceed to realise the dues. It is not contended that the petitioner had deposited 25% and furnished the bank guarantee for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital goods and raw materials. The condition imposed in the sanction order to carry on manufacturing process and other operations in terms of the said Regulation, wherein under Clause (4) it was stipulated "before warehousing and manufacturing any goods the bonder will have to furnish required insurance policies in the name of the Collector of Customs, equal to the amount of duty inclusive value". It was further stipulated that such manufacture should be subject to provision of Customs Act, 1962, the said Regulation and also in terms of the conditions of the Customs Act, 1962. A bond was executed in between the said importer-writ petitioner and M/s. Prudential Plus Surety by binding themselves and their heirs, successors, executors and/or administrators accepting a liability to pay Rs. 10 crores to the President of India on the conditions stipulated thereto. The relevant portion of the bond reads such : "KNOW ALL MEN BY THESE PRESENTS and assigns that We M/s. ANMTARCTICA GRAPHICS LIMITED, Sector-I, Falta Export Processing Zone, carrying on business hereinafter called " the importers" (which expression shall mean and include our successors and our respective heirs, executors an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Signature of the Importer" 3. On breach of the conditions of sanction to import capital goods, the petitioner wrongfully mortgaged the property, namely, those capital goods, raw materials, machinery and other finished goods including the plant and machinery in favour of different financial institutions and banks. Such import of capital goods and raw materials was exempted from any custom duty and excise duty. While the goods were in warehouse, due to alleged electrical short-circuit at midnight of 11th January, 1996, the unit suffered a devastating fire. The writ petitioner-appellant got the compensation from M/s. National Insurance Company Limited, the insurer and the amount was paid to the financial institutions wherefrom the writ petitioner-appellant took loan under the agreement. On 15th June, 1998, a demand notice under Section 28(3)(ii) read with Section 72(d) of the Customs Act, 1962 and Section 11A(3)(ii)(b) of the Central Excise Act, 1944 amounting to Rs. 63886466/- being duty not levied together with interest at the rate of 18 per cent from 12th January, 1996 till the date of payment of the duty was served to the petitioner. Petitioner submitted his representatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that the petitioner has received about 14 crores of rupees from the insurance company but the contention of the petitioner as regards exemption of duty on goods which are destroyed by fire also needs consideration inasmuch as the condition prescribed being this satisfaction of the Assistant Collector of Customs, duty shall not be leviably in respect of the goods or goods manufactured, produced, processed or packaged in the unit, if such goods are destroyed within the same and the case of the petitioner being that they were as destroyed within the zone, an interim direction requires to be passed by this Court to safeguard the interest of the petitioner as also that of the Customs Authorities pending disposal of the instant writ application. Meanwhile, however, keeping in view the effect of the impugned order dated 24-3-2000, being Order No. 3-242/Cal/2000, passed by the Customs Excise Gold (Control) Appellate Tribunal, Eastern Branch, there shall be an interim direction staying operation of the said order and/or for disposal of the appeal filed by the writ petitioner and pending before the CEGAT subject, however, to the following conditions; (i) The petitioner shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department concerned who is interested to get the alleged dues realised. Accordingly, I set aside this order and I permit the writ petitioner to export these goods as proposed. However, the entire proceeds, which shall be deposited with the concerned bank, shall be, after meeting all the necessary legal expenses, kept deposited with Mr. Jayanta Banerjee, a practising lawyer of this Court, who is appointed Special Officer for this purpose without security, and without remuneration for the time being. The petitioner as well as the bank concerned, shall make over all the supporting documents and the net amount of export as directed above to the Special Officer, Mr. Jayanta Banerjee. Mr. Jayanta Banerjee will open a separate account and for this purpose Mr. Debal Banerjee's client will supply the necessary amount for opening this bank account. I make it clear that this amount shall be received in terms of the Court's order and will have no bearing so far as his personal account is concerned. Mr. Jayanta Banerjee shall hold this amount in a separate Fixed Deposit Account to be opened in the Standard Chatered Grindlays Bank, Church Lane Branch, Calcutta, upon intimation to all the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or ascertaining compliance with the High Court's Order, nobody is present on behalf of the appellants. However, vide their letter dated 29-11-2000, they have informed that a Special Leave Petition has been filed before the Honourable Supreme Court against the High Court's Order on 16-10-2000. However, there is no Stay Order by the Hon'ble Supreme Court. On going through the Calcutta High Court" Order dated 18-9-2000, we find that there is a clear direction by the High Court that in case of default of either condition, an Interim Stay thereby granted, shall stand vacated. Inasmuch as they have not complied with the Order passed by the Hon'ble High Court, we dismiss the appeal for non-compliance. Dictated in the open Court." 8. This appeal has been opposed by the respondent-Custom Department by supporting the judgment under appeal. 9. The writ petitioner-appellant has prayed the following reliefs in the present writ application W.P. No. 441 of 2002, the judgment of which is challenged in this appeal : "(a) A writ of and/or in the nature of Mandamus directing and commanding the respondents and each of them to refrain from giving effect or further effect and/or act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8195;A writ of and/or in the nature of Certiorari directing and commanding the respondents and each of them to transmit the records relating to the case after certifying the same so that conscionable justice may be administered on the basis thereof; (d)Rule Nisi in terms of prayers above; (e)That the respondents and each of them their subordinates and officers are restrained by an ad-interim order of injunction from causing any interference to the on going business of the petitioner at Falta Export Processing Zone or from withholding release of the goods of the petitioner meant for export any further and in any manner whatsoever; (f) That the respondents are restrained by an ad-interim order of injunction from giving effect or further effect to the impugned notices dated February, 15, 2001 and March 16, 2001 or taking any steps pursuant thereto any further and in any manner whatsoever till the disposal of this application; (g)Costs of and incidental to this application be paid by the respondents to the petitioner; (h) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may seem fit and proper." 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied by Apex Court in the case Udyani Evam Khadi Gramodyog Welfare Sanstha Anr. v. State of U.P. Ors., reported in (2008) 1 SCC 560, as core issue of earlier writs and present one, is only to resist the demand notice dated 15th June, 1988. 14. Before parting with the matter, in course of hearing of the appeal, learned advocate for the appellant submitted new point though it was not pleaded at all in the writ application, namely, that an application seeking remission of Custom duty under Section 23 of the Customs Act, 1962 was filed but the same was not disposed of. Section 23 reads such: "23. Remission of duty on lost, destroyed or abandoned goods.- (1) [Without prejudice to the provisions of Sec. 13, where it is shown] to the satisfaction of the [Assistant Commissioner of Customs of Deputy Commissioner of Customs] that any imported goods have been lost [otherwise than as a result of pilferage] or destroyed, at any time before clearance for home consumption, the [Assistant Commissioner of Customs of Deputy Commissioner of Customs] shall remit the duty on such goods. [(2) The owner of any imported goods may at any time before an order for clearance of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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