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TMI Blog2018 (7) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... up the said relief and were harping more on the relief of the permission to get the witnesses called for cross-examination. Having once given up the relief of the challenge to the search and seizure, the subsequent challenge to the same is not permissible and the petition would be hit by a constructive res judicata, the petitioners would be estopped from filing the fresh writ petition for the same cause of action and on the same grounds - the petition thus would not be maintainable so far as the challenge to the search and seizure is concerned. Opportunity to cross-examine the witnesses - Held that:- Since the appeal preferred by the petitioners assailing the order dated 31-3-2017 already stands allowed in favour of the petitioners vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of litigation i.e. in WPT No. 47/2017 which stood decided on 27-4-2017. According to the counsel for the petitioner, since, this Court while disposing of the earlier writ petition on 27-4-2017 had granted the liberty to the petitioner for moving an appropriate application for calling upon the witnesses for cross-examination and it was directed that, the department should consider and decide the same within a period of 10 days from the date of hearing of the said application. Meanwhile, the respondent had passed the final order itself on 31-3-2017. The counsel for the petitioner submits that, the order was illegally passed and that the order is per se bad in law and contrary to the statutes itself. He further submits that, the order is ant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout a search warrant being issued by the competent authority and in the instant case, the department themselves has admitted vide the information provided under the Right to Information Act that, prior to the search conducted on 12-4-2012, no search warrant was issued which thus is in total contravention to the provisions of Section 12F of the Central Excise Act and therefore the same deserves to be set aside/quashed. 5. The counsel for the department on the other hand opposing the petition submits that, Rule 22 of the Central Excise Rules, 2002 empowers the officer of the department access to any premises for the purpose of carrying out any scrutiny, verification and checks as may be necessary to safeguard the interest of the revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings initiated and conducted by the officers of the respondent and record under Panchnama dated 12-4-2012 (Exhibit P-1), drawn at the factory premises of petitioner No. 1. 7. If we look at the relief clause 10.1 of the present writ petition it would reveal that, the nature of relief made in the present writ petition was also the same. 8. Now when we come to the order passed by the High Court in the said writ petition on 27-4-2017, the very first paragraph of the order itself reads as under :- Though by way of present writ petition the petitioners have sought various reliefs, but during the course of argument he would submit that the petitioners application for cross-examination of 23 witnesses have been rejected arbitrarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. In view of the same, this Court is of the opinion that since the veracity of the search and seizure was already challenged in an earlier round of writ petition and which the petitioners consciously had not pressed at the time of hearing of the said writ petition it amounts to giving up of the said relief and for the same relief (only on the ground that subsequently he had got certain additional documents to substantiate his contention) the petition thus would not be maintainable so far as the challenge to the search and seizure is concerned. 13. As regards non-granting of opportunity to cross-examine the witnesses, since the appeal preferred by the petitioners assailing the order dated 31-3-2017 already stands allowed in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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