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TMI Blog2020 (1) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT in Excise Appeal Nos. 50166 and 51678 of 2016, dated 20-9-2017 nor was any such leave granted. Reliance placed in the case of Sarguja Transport Service v. S.T.A. Tribunal, Gwalior [ 1986 (11) TMI 377 - SUPREME COURT ] where it was held that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy. The principles laid down by the Supreme Court, in Sarguja Transport, both with regards Order 23 Rule 1(3) C.P.C, and Articles 226 and 227 of the Constitution, would also apply to an appeal under Section 35G of the Central Excise Act, 1944 - Since the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 51678 of 2016, dated 22-9-2017. 4. While seeking permission to withdraw Central Excise Appeal Nos. 41 42 of 2018, the appellant neither sought liberty to file an appeal, later against the order passed by CESTAT in Excise Appeal Nos. 50166 and 51678 of 2016, dated 20-9-2017 nor was any such leave granted. In Sarguja Transport Service v. S.T.A. Tribunal, Gwalior : AIR 1987 SCC 88, the Supreme Court observed : The Code as it now stands thus makes a distinction between abandonment of a suit and withdrawal from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit. or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court. . The point for consideration is whether a petitioner after withdrawing a writ petition f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open .. (emphasis supplied) 5. The principles laid down by the Supreme Court, in Sarguja Transport, both with regards Order 23 Rule 1(3) C.P.C, and Articles 226 and 227 of the Constitution, would also apply to an appeal under Section 35G of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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