By TIOL News Service

PATNA, JAN 21, 2016: IN the Writ application, the petitioner, inter alia, pleaded that - 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 Rs.25,000/- within a time frame, be issued."

The counsel for the department submitted that the petitioner's earlier writ application for an identical relief had not only been dismissed by the single Judge but was affirmed by the Division Bench and the Apex Court had also dismissed the Special Leave Petition and, therefore, no fresh writ application would lie for the same cause of action on the ground of res judicata and constructive res judicata.

The Court viewed that the preliminary objection raised by the counsel for the respondents, has to be upheld.

It was also observed that a consignment of the petitioner was subjected to seizure by the authorities of the Customs Department on 12.06.2001 and the Joint Commissioner of Customs had by order dated 15.07.2003 directed for confiscation of the seized goods wherein an option was also given to redeem the seized goods on payment of redemption fine of Rs. 75,000/- within a period of one month; that against this order the petitioner had filed an appeal wherein they prayed for waiver of pre-deposit of penalty imposed of Rs.25,000/-; that the Commissioner(A) had directed pre-deposit of penalty of Rs.5,000/-; that neither the petitioner deposited the RF nor made any prayer for extension of time; that 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.

The High Court further observed that the appeal was finally dismissed by the Commissioner(A) by order dated 21.09.2004; that the appeal filed before the CESTAT was also dismissed on 06.01.2006; that the restoration application was also rejected on 10.03.2006.

Incidentally, after the petitioner had lost before the Tribunal, they 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 Tribunal on 10.03.2006, they had no other remedy but to deposit the amount of redemption and penalty and as such necessary order should be passed.

In the meantime, on 04.08.2005, as the petitioner had not sought redemption of the seized goods within one month from the order dated 15.07.2003, the same was sold in auction by the department.

As mentioned by the counsel for the department, the petitioner had thereafter filed a writ application in the Court (No. 12114 of 2006) and the fate of the same has been mentioned earlier.

In the matter of the present writ application, the Bench, therefore, observed -

+ This Court fails to understand as to how the present writ application can be held to be maintainable specially when the finding of the learned single Judge as with regard to that very auction sale, whose quashing is being sought herein, was approved in no uncertain terms by this Court in the order dated 30.04.2007 in C.W.J.C No. 12114 of 2006, wherein it was categorically held as follows:

"Petitioner lost his entitlement for retaining the seized articles after it vested in Central Government. The respondents thereafter auctioned seized 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."

+ 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.

+ 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. [Daryao and Others v. State of U.P. and Others reported in AIR 1961 SC 1457 refers]

+ The Apex Court has also held that it would not be open to a party to ignore the said judgment and move this Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. [Ashok Kumar @ Golu v. Union of India &Ors. reported in (1991) 3 SCC 498 refers]

+ This Court is not inclined to now allow the petitioner to re-agitate 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.

The writ application was dismissed with a cost quantified at Rs.10,000/- to be paid by the petitioner in the Patna High Court Legal Services Authority within a period of one month failing which the Collector of East Champaran District was directed to recover the said amount by initiating a certificate proceeding.

(See 2016-TIOL-117-HC-PATNA-CUS)