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TMI Blog2016 (1) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... he Division Bench and another before the learned single Judge of this Court, have been dismissed on the same issue. This writ application is, accordingly, dismissed with a cost quantified at ₹ 10,000/- which must be deposited by the petitioner in the Patna High Court Legal Services Authority. - Civil Writ Jurisdiction Case No. 2848 of 2011 - - - Dated:- 26-11-2015 - Mihir Kumar Jha, J. For the Appellant : Mr. Yogendra Mishra, Adv For the Respondent : Mrs. Archana Meenakshee JUDGMENT Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows: 1.(i) An appropriate writ, order or direction declaring the entire action of the respondent 1st party as mentioned in the release order dated 04.08.2005 (Annexure-8) as illegal, arbitrary void and without jurisdiction, be issued. (ii) An appropriate writ, order or direction commanding the respondents to either deliver the seized articles or to pay the price thereof adjusting the penalty of ₹ 25,000/- within a time frame, be issued. 3. Before the learned counsel for the petitioner could make his submissions, a preliminary objection was ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y within one month of the date of order. The relevant portion of the aforesaid order of confiscation dated 15.07.2003 reads as follows: ORDER Accordingly, in exercise of power conferred upon me under Section 122 of the Customs Act, 1962, I order for confiscation of the seized goods, under Section 111(b) of Customs Act, 1962, however I offer an option to the owner of the goods under Section 125 of Customs Act, 1962 to redeem the seized goods on payment of redemption fine of ₹ 75,000/- in lieu of confiscation. This option is to be exercised within one month of issue of the order. However, the release of goods to be done on payment of penalty amounts to the notice. I order for confiscation of the seized truck under Section 115(2) of Customs Act, 1962. However, since the truck hs been released provisionally on bond, on deposition of cash security of ₹ 25,000/-. I offer an option under Section 125 of Customs Act 1962 to redeem the seized truck on payment of redemption fine of ₹ 25,000/-. I impose penalty, shown against the names mentioned below, under Section 112 of Customs Act, 1962. Noticee No. Names ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om date of this order and proof regarding compliance of this order must be produced on or before 31-12-2003 failing which appeal shall be dismissed without any further reference to them for non-compliance of provisions as contained in section 129E of the Customs Act, 1962. Sd/- (A.K.Agarwal) Commissioner (Appeals) Customs Central Excise Patna 7. It however must be kept in mind that neither the petitioner had deposited the redemption amount of ₹ 75,000/- nor he had made any prayer before the appellate authority for extending the period of one month in which such redemption amount for redeeming the seized goods was offered to the petitioner under the order of the original authority dated 15.07.2003. Thus, when the petitioner himself did not exercise the option given by the original authority of redeeming the seized goods within a period of one month nor had he even filed an appeal within that period of one month i.e. on or before 14.08.2013, he could not have expected the customs authorities to sit idle. As a matter of fact, the appeal of the petitioner also ultimately was dismissed by order dated 21.09.2004, wherein the appellate authority had held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Incidentally, I find that earlier this case was also dismissed for non-prosecution on 2/06/2005. 9. From the averments made in this writ application and the documents enclosed thereto, it will also become clear that the petitioner had again filed another application for restoration before the Tribunal, but such application for restoration was also dismissed by an order dated 10.03.2006, wherein it was held as follows: 2. I observe that this is the second time that the matter is coming up for restoration of appeal. On an earlier occasion, this Tribunal had accepted the contention of the applicant and allowed the restoration. As it comes on a repeated manner, I do not find that there is any reason for restoring the appeal as sought for by the applicant. The Application is rejected. 10. What is still very significant to be noted here is that after the petitioner had lost up to the Tribunal, he had filed an application for redeeming the seized goods, in view of the order dated 15.07.2003, by filing an application before the Deputy Commissioner, Customs, Motihari on 15.05.2006, wherein it was stated that since the appeal of the petitioner had been rejected by the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion fee within one month. Petitioner's appeal was dismissed in the year 2004 and he preferred revision which was dismissed for non prosecution in the month of January, 2005. Thereafter he again preferred revision which was finally dismissed. After the dismissal of the revision the articles seized vested with the Central Government under Section 126 of the Customs Act. Petitioner lost his entitlement for retaining the seized articles after it vested in Central Government. The respondents thereafter auctioned sold articles and it cannot be said that they have committed any illegality or jurisdictional error. In this view of the matter petitioner cannot take a plea that the auction sale has been done by the respondents either in violation of rule of natural justice or in violation of any of the provisions of the Customs Act. (underlining for emphasis) 14. Against the aforementioned order of the learned single Judge, the petitioner had filed an appeal, being L.P.A. No. 480 of 2007 which also was dismissed on 08.10.2007 and as against that order when the petitioner had moved the Apex Court, the Special Leave Petition was also dismissed on 21.03.2008. Thereafter, the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said that they have committed any illegality or jurisdictional error. In this view of the matter petitioner cannot take a plea that the auction sale has been done by the respondents either in violation of rule of natural justice or in violation of any of the provisions of the Customs Act. (underlining for emphasis) 15. Let it be noted that the aforesaid finding had already been also affirmed by the Division Bench in the Letters Patent Appeal, as well as by the Apex Court in the Special Leave Petition. This Court had again occasion to dismiss the review application filed by the petitioner against the order dated 08.10.2007 dismissing the LPA No. 480 of 2007. As a matter of fact, the order of the learned single Judge having merged with the order of the Division Bench in the order dated 08.10.2007 in LPA No. 480 of 2007, this writ application must be held to be barred by both the principles of res judicata and constructive res judicata. 18. By now also, it is well settled that the principles of res judicata is very well applicable to the proceedings under Article 226 of the Constitution of India. Reference in this connection may be usefully made to the judgment of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er; but even otherwise, the point has not bee considered and should not be held to be barred by constructive res judicata. It is significant that the attack against the validity of the notices in the present proceedings is based on grounds different and distinct from the grounds raised on the earlier occasion. It is not as if the same grounds which was urged on the earlier occasion is placed before the Court in another form. The grounds now urged are entirely distinct and so, the decision of the High Court can be upheld only if the principle of constructive res judicata can be said to apply to writ petitions filed under Art. 32 or Art. 226. In our opinion, constructive res judicata which is a special and artificial form of res judicata enacted by S. 11 of the Civil Procedure Code should not generally be applied to writ petitions filed under Art. 32 or Art. 226. We should be reluctant to apply this principle to the present appeals all the more because we are dealing with cases where the impugned tax liability is for different years. In dismissing the appellants' petitions on the ground of res judicata, the High Court has no doubt referred to Art. 141 under which the law declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. The facts of the case of the petitioner however would not permit, learned counsel for the petitioner to raise even this plea. It has to be noted that the appeal of the petitioner was dismissed by the Tribunal on 02.06.2005, and no proceeding was pending on 04.08.2005, when the auction of the seized property of the petitioner was held. The restoration of the appeal in fact was allowed only subsequently sometime in the year 2006 and eventually the Tribunal had again dismissed the appeal of the petitioner on 06.01.2006. It is this factual aspect which will make this Court to hold that the observations made in the interim order of the Apex Court in the case of SHILPS IMPEX(supra), laying down infact no law cannot be made applicable. From the reading of the interim order in the case of Shilps Index (supra), it would become clear that in that case the amount of redemption was already paid by the authorities of the Customs Department, unlike in the present case, where the petitioner did not make payment of the amount of redemption as directed in the order of the original authority dated 15.07.2003. 24. As a matter of fact, it has to be restated, that in the case of redemption unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttar Pradesh v. Nawab Hussain reported in AIR 1977 SC 1680, wherein, explaining the principle of constructive res judicata, it was held as follows: The principle of res judicata come into play not only when the issue has been directly and explicitly decided by the Court but also when such issue has been implicitly and constructively decided. When any matter which might and ought to have been made a ground of defence or attack in an earlier proceeding but was not so made, then such matter in eyes of the law, to avoid multiplicity of litigation and to bring down of penalty under it, is deemed to have been constructively in issue and therefore is taken as decided. 28. Thus, for the reasons indicated above, this Court is not inclined to now allow the petitioner to reagitate the same issue in a different manner specially when the seized goods in the year 2001 has already been disposed of by the auction sale in the year 2005 and the writ application, appeal, Special Leave Petition and two review applications one before the Division Bench and another before the learned single Judge of this Court, have been dismissed on the same issue. 29. This writ application is, accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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