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TMI Blog2005 (3) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... law. The learned Advocate submitted that in the said Order, the Government of India has accepted the purchase price of Children's garments; that the findings in the impugned Order is factually incorrect in as much as that the earlier proceedings before the Government of India were the same pertaining to the correct ascertainment of the FOB value of the exported Children's garments; that once the Government of India has affirmed the FOB value of Rs. 242/- per set, no officer of the Department could overgo/nullify the same just by saying that in the earlier proceedings there was no allegation of fraud, forgery or manipulation, etc.; that the principle of stare decisis also applies to this particularly when all the evidences on the basis of which allegation of fraud, forgery, manipulation etc. have been made were already in the possession with the Department when the proceedings before the Government of India was going on; that even after the issuance of show cause notice dated 7-1-2000, the Government's Order dated 26-3-1999 had not been challenged before the High Court; that on the other hand when the said order dated 26-3-1999 was challenged by the Appellant in the Delhi High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount; that this was precisely the reason that they had sought cross-examination of the representatives of the shipping companies to ascertain from them as to on whose direction, these goods were diverted to Dubai. He emphasised that the Commissioner has exonerated all the other persons whom the show cause notice was issued to for imposing penalty; that in such circumstances; it can not be alleged by the Department that there was any conspiracy hatched by the Appellants. 4.Countering the arguments Shri S.M. Tata, learned Senior Departmental Representative, submitted that the doctrine of res-judicata does not apply in respect of the 29 shipments of Children's garments since the earlier proceedings before the Government of India were not the same as all the documents now relied upon were not before it; that at the time of earlier proceedings there was no allegation of fraud and forgery, manipulation, etc. was made as the issue simply related to valuation of the product in question; that thus the issue in the present proceedings is altogether different; that the overwhelming evidence available with the Department clearly shows that the appellants had deliberately manipulated the expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fixed the value at Rs. 210/- per set, under Order-in-Original No. 41/95, dated 16-11-1995 and their Appeal was rejected by the Commissioner (Appeals). However, the Government of India; vide Order No. 406/99, dated 26-3-1999 enhanced the FOB value to Rs. 242/- per set and ordered settlement of drawback as per law. The Government of India observed that as the FOB value declared by the Appellants was rejected as incorrect, "no option is left but to fall back upon the ascertained market price. The FOB (Free on Board), as a concept, signify a price which includes all costs including transport and other charges incurred upto the time that the goods are loaded on to ship for exportation." The Revisionary Authority observed that the Appellants "have kept the difference of 14% to 16% between their cost price and declared FOB value. This difference can be said to include the profit margin, transportation and other charges incurred upto the time when goods are loaded on the ship for exportation. For the sake of calculation this difference may be considered at the average rate of 15%". Thereafter the following Order has been passed - "Government feels that treating the ascertained market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her forum and deny the draw back claim to the Appellants. It has been held by the Supreme Court in Hope Plantation Ltd., supra, that "When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation……………. Again, once an issue has been finally determined, parties can not subsequently in the same suit advance arguments or adduced further evidence directed to showing that the issue was wrongly determined. Their only remedy available is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel." The Gujarat High Court in Gujarat State Fertiliser Chemicals Ltd., supra, has held when the Revenue challenged the grant of refund amount to the assessee by the Tribunal instead of being credited to the Consumer Welfare Fund, that "so far as the impugned Order delivered by the Tribunal is concerned, it has become final. It is well known principle that finality of the judicial decision is one of the essential ingred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same question." The Karnataka High Court has held that ''Principles of res judicata, therefore can not apply for adjudications made by Revenue authorities though they have to exercise their powers in a quasi judicial manner. It is well settled that in cases of assessment under the Income Tax Act, and decision made in one assessment year does not preclude the Income Tax Officer from arriving at a different conclusion in a subsequent year." This judgment is not an Authority for the proposition that the show cause notice can be issued for the same assessment year. This is apparent from the following observation of the High Court : "The learned Counsel for the petitioner has not placed before us any decision or Authority for his proposition that a prior decision concerning the classification of goods for purposes of taxation under the Act binds the Department for all times." 7.3 In J.K. Synthetics case also, the Delhi High Court has considered the effect of a decision in subsequent proceedings. The question put by the High Court was "Will it be open to the department, without any cogent reasons and merely at its own caprice, to refuse to follow the conclusions reached on the ear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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