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TMI Blog2013 (9) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... ption fine of Rs. 5,00,000/- in lieu of confiscation and imposed penalty of Rs. 1,80,000/-. In an appeal before the Commissioner of Customs (Appeal) the amount of fine was reduced to 3,00,000/- and penalty to Rs. 90,000/-. In a cross revision preferred by both the parties the Joint Secretary, Ministry of Finance to the Government of India, Department of Revenue held that since the exchange were not declared under s. 77 of the Customs Act they were liable for confiscation and the fine and penalty imposed by the adjudicating authority were restored. The customs authorities were directed to release the Indian equivalent of foreign currency in Indian currency after deducting the amount of fine and penalty. The petitioner asked for release of the foreign currency and the implementation of the order of the revisional authority. Since this was not done he filed a writ petition in the year 2011 challenging the order passed by the respondents and the inaction on the part of the respondent authorities in releasing the amount equivalent to foreign exchange. The writ petition was disposed of by a learned single judge of this court by an order dated December 21, 2011 by granting liberty to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with by the petitioner inasmuch as the petitioner had already deposited the redemption fine and penalty and sought for release of the confiscated goods in lieu of payment of redemption fine and penalty. The respondents had contended that the petitioner had deposited the redemption fine which is the value of the confiscated goods as contemplated under Section 125 of the Customs Act and personal penalty as contemplated under section 112(1). The petitioner has acted in terms of the order and, therefore, cannot challenge the same by this writ petition. Mr. Sudhir Kumar Mehta, the learned advocate for the petitioner has submitted that there is neither any accord nor satisfaction. After the payment of redemption fine and penalty the petitioner has still a right to prefer an appeal. Paying redemption fine and penalty does not foreclose the right of appeal or to pursue the legal remedies available to him. Mr. Mehta submits that payment of redemption fine and penalty is necessary for the purpose of filing an appeal and for availing himself of the other legal remedies available. According to him the learned single judge disposing of the first writ petition had given the petitioner liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court that the plea which is now taken could have been taken earlier but that should not be a ground to deny the relief to the appellant as the technical plea of constructive res judicata should not stand in the way in a case of the present nature. Mr. Mehta further referred to the case of Paul Industires (India) -Vs.- Union of India and Ors., reported in (2004) 13 SCC 340 for a proposition that after withdrawal of the earlier writ petition to file the rectification petition before the settlement commission the subsequent writ petition challenging the order of rejection by the settlement commission could not be rejected on the ground of withdrawal of the earlier writ petition. In the case of Daryao and Ors. -Vs.- State of UP and Ors., reported in AIR 1961 SC 1457 the Supreme Court held that if a writ petition filed by a party is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed in appeal or other proceedings permissible under the Constitution. If the petition is dismissed not on the merits but because of the laches of the party he has an alternative remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission of Ms. Sarkar that if the order of the revisional authority is struck down the petitioner in any case will not be entitled to ask for the refund of the redemption fine as that this is not provided under the Customs Act. It appears that the petitioner also cannot get back the seized articles. These goods have been exhibited in the court trial pending before the appropriate court. As such if the petitioner is aggrieved his remedy lies in approaching the criminal court. In the case of Shyam Telelink Limited now Sistema Shyam Teleservices Limited -Vs.- Union of India, reported in 2010(7) Supreme 244 the Supreme Court had held: "....... The maxim qui approbat non reprobate (one who approbates cannot reprobate)......" is firmly embodied in English Common Law and often applied by courts in this country. It is close to the doctrine of benefits and burden which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without applying the latter. A person cannot approbate and reprobate or accept and reject the same instrument. This settled principle is based on a very ancient enunciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar fund is distributed, is estopped by his conduct from reopening any of the questions covered by the former judgement by means of a fresh action. Although this judgement was delivered in the context of the construction of a will the principle deducible therefrom is of universal application. A litigant who has taken the benefit either in whole or in part of a decision of an inferior tribunal is precluded from a plea by way of an appeal or otherwise between the same parties that the decision was wrong or even if it was partly right was erroneously decided as to the residues. He is thus estopped from raising any such plea. Reference may be made to another case where the same principle was applied in the context of an action for specific performance of a contract or alternatively for damages. In the case of Meng Leong Development Pte Ltd. -Vs. Jip Hong Trading Co Pte Ltd., reported in (1985)1 All ER 120 the Judicial Committee of the Privy Council held that the purchaser had made an election to accept the trial Judge's Award of damages and abandoned his right of appeal seeking specific performance when he demanded and accepted the deposit of damages passed by the trial Court. It was f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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