Antarctica Limited vs Union of India (UOI)

Pratap Kumar Ray, J.—Challenging the judgment and order dated 8th May, 2002 passed in the Writ Petition No. 441 of 2002, this appeal has been preferred by the writ Petitioner. By the impugned judgment under appeal, writ application was dismissed on the ground of res judicata, in view of the fact that very notice dated 16th March, 2001 being Annexure P-12 of the writ application, which was under challenge in the writ application, was the subject matter of challenge in the earlier writ application being writ Petition No. 613 of 2001, which stood disposed of with certain direction. In the writ application the Petitioner prayed for quashing of the instruction dated 16th March, 2001 being an instruction in pursuance of a notice issued u/s 142of the Customs Act, 1962 read with Section 11 of the Central Excise Act, 1944, directing that any goods belonging to the writ Petitioner as would pass through the Customs House may be sold under provision of Section 150 of the Customs Act, 1962 read with Section 11 of the Central Excise Act, 1944 and the amount stated in the demand should be deducted from the sale proceeds. So far as the other relief in the writ praying injunction order restraining recovery of the amount of duty or interest in terms of the demand notice dated 15th June, 1998, learned trial Judge discussed at length about filing of the several writ petitions earlier, the factum of preference of appeal without pre-deposit of the demand and different orders of the High Court, allowing the writ Petitioner to deposit 25 per cent of the demand as a condition precedent of maintainability of the appeal etc. and thereby rejected the prayer. Impugned judgment under appeal reads such:

In this writ petition the order dated 16th March, 2001 contained in Annexure "P-21" has since been challenged. It is contended that the Petitioner was not aware of this order which is the internal memo of the Respondent authority. It was only disclosed in course of another proceeding and very recently they have came up to challenge the said order. Many grounds have been taken with regard to the validity of the initiation of the proceeding from the demand notice including those that by reason of Section 28 the demand as having become enforceable and barred by limitation could not be resorted to and enforced against the Petitioner. It is also tenanted out that the proviso providing substitution of five years in place of six months is dependent on certain contingencies provided therein. Unless those contingencies are fulfilled other proceedings cannot be proceeded with. Therefore, the operation of the said order dated 16th March, 2001 should be stayed.

Mr. Mullick and Mr. Saha have taken various grounds, and drew the attention of the Court to the statements made in the writ petition and annexure annexed thereto in order to sustain their contention. They had also referred to various notification in support of the respective contention on merit of the claim.

Mr. Ghosh has taken a preliminary objection with regard to the maintainability of the writ petition on the ground that this has been barred by the principle of res judicata in view of the fact that out of the same cause of action several other writ petitions were moved. Some orders were passed in those writ petitions. Some were withdrawn and some were dismissed. But so far as the demand is concerned an interim order was granted to the extent of 25% payment of duty and securing of the balance 25% by bank guarantee. By reason of such order the Petitioner can no more bring any action with regard to the demand. He further contended that an appeal is pending before the CEGAT out of the same demand, in which an order was passed u/s 35(f) of the Customs Act, 1962 reducing the demand, against which this Court was moved and the said interim order of 25% deposit and 25% bank guarantee was obtained. Therefore, it is no more upon to the Petitioner to come before this Court and obtain an order in respect of the alleged Annexure "P-12" inasmuch as it is the part of the same cause of action, which is being assailed in this writ petition. It does not give rise to set a fresh cause of action to assail the same, in dependent of the cause of action of the appeal pending before the CEGAT and involved in all the writ petitions which were disposed of earlier.

Subject matter in any of the earlier writ petitions. Nor it is the subject matter before the CEGAT. This gives rise to an independent cause of action. Therefore, the writ petition is very much maintainable.

After having heard the learned Counsel for the parties it appears that the writ Petitioner had earlier preferred an appeal against the demand dated 18th December, 1998 which is pending. Section 35 of the Customs Act, 1962 requires a pre-deposit before the appeal is taken up for hearing. The Petitioner had prayed for waiver of the amount u/s 35(f). By an order dated 24th March, 2000 2008 (123) E.L.T. 11 (Tribunal)] the stay application was allowed and the Petitioner was permitted to deposit Rs. 5 crores. The Petitioner moved an application for modification before the CEGAT. By an order dated 5th July, 2000 the said application for modification was dismissed directing the pre-deposit by 15th September, 2000. Against these orders Writ Petition No. 2420 of 2000 was moved before this Court. On 18th September, 2000 when this Court had directed by an ad-interim order to deposit 25% of the duty within four weeks and it secured another 25% of the duty by way of bank guarantee, together with the default clause. An appeal was preferred against the order dated 18th September, 2000. The Division Bench was pleased to dismiss the appeal on 28th September, 2000. Another writ petition was filed on 2nd April, 2001 being Writ Petition No. 613 of 2001, praying for permission to export the goods by the Petitioner. Admittedly it is pointed out by Mr. Saha that this writ petition was directed against an order dated 17th March, 2000 (Annexure " P-13" ). The said order appears to have been passed on the basis of a telegraphic message received from the Superintendent of Custom (Prevention) not to release any goods of the Petitioner without any order from the Deputy Commissioner of Customs. It appears that the said order must have been passed as a follow up of the order dated 16th March, 2001. Thus it seems that the order dated 17th March, 2001 is a cause of action related to the order dated 16th March, 2001.

Be that as it may, by an interim order passed in Writ Petition No. 613 of 2001 a Special Officer was appointed and the Petitioner was permitted to export certain goods on certain conditions. On 24th May, 2001 the Petitioner filed another writ petition being Writ Petition No. 1019 of 2001. In the said writ petition direction were given. No interim order was granted. That writ petition was heard, hearing was concluded and judgment was reserved. But on 31st January, 2002 the said writ petition was withdrawn by the Petitioner. In the meantime, on 29th June, 2001 Writ Petition No. 2420 of 2000, in which the interim order was granted requiring deposit of 25% and securing balance another 25% by bank guarantee, was disposed of in terms of the interim order already granted after confirming the same. Against the said order dated 29th June, 2001 an appeal was preferred on 12th July, 2001. In the appeal an application for stay was filed, which was heard on 13th August, 2001 and 11th August, 2001, but no interim order was granted. The Petitioner filed another writ petition being Writ Petition No. 133 of 2002. This writ petition was ultimately dismissed on 8th March, 2002. In view of these, the present writ petition has been filed. The learned Counsel for the Petitioner however disputes the same and contends that the said writ petition is still pending, it is not necessary to go into those details for the present purpose. It appears that all those writ petitions emanate from the principal cause of action, which arose out of the demand dated 18th December, 1998 and the question of pre-deposit in connection with the appeal before the CEGAT. Cause of action is not a single action. It is a bundle of facts. After interim order was granted for securing 50% of the duty in respect of the pre-deposit, until and unless there is an order of stay, it is open to the custom authority to proceed to realise the dues. It is not contended that the Petitioner had deposited 25% and furnished the bank guarantee for 25% of the duty and the CEGAT has stayed the realisation. Therefore, so long the realisation is not stayed, it is open to the Custom Authority to proceed to realise the said amount through any mode of realisation as is permissible in law. In fact on 16th March, 2001 an order being Annexure "P-12" was issued for the purpose of realisation of the demand which has not been stayed. Therefore, it cannot be said that issuance of the order dated 16th March, 2001 is an independent order independent of the cause of action arising out of the demand dated 18th December, 1998. It is a follow up action passed in furtherance of the said demand dated 18th December, 1998, realisation whereof has not been stayed. Since the Petitioner has moved several writ petitions within the same cause of action and obtained certain order, it is no more open to it to move a fresh writ petition against another part of the Petitioner cannot claim that it would be a fresh cause of action as and when the Respondent authority will attempt to realise the demand on account of its not being stayed.

Therefore, the writ petition is not based on a cause of action which is independent of the cause of action involved either in the earlier writ petition or in the part before the CEGAT. Therefore, on the principle of res judicata this writ petition cannot be maintained and in view of the above finding it is not necessary to go into the other questions raised which shall remain open to be agitated in the appeal before the CEGAT.

This writ petition is therefore, dismissed. All points are kept open.

Since no affidavit-in-opposition has been filed, the allegation contained in the petition are not admitted by the Respondents.

All parties are to act on a signed xerox copy of this dictated order on the usual undertaking.

From the impugned judgment under appeal it appears that the case has a checkered history. The writ Petitioner-appellant was accorded sanction as importer to carry on manufacturing process or other operations in the warehouse under Regulation 5 of the Manufacture and Other Operations in Warehouse Regulation, 1966 by Assistant Collector of Customs for Falta Export Processing Zone. The manufacturing process or other operations permitted to be carried on in the warehouse were prints and packaging materials. The types and nature of import and other goods permitted to be used was capital goods and raw materials. The condition imposed in the sanction order to carry on manufacturing process and other operations in terms of the said Regulation, wherein under Clause (4) it was stipulated "before warehousing and manufacturing any goods the bonder will have to furnish required insurance policies in the name of the Collector of Customs, equal to the amount of duty inclusive value". It was further stipulated that such manufacture should be subject to provision of Customs Act, 1962, the said Regulation and also in terms of the conditions of the Customs Act, 1962. A bond was executed in between the said importer-writ Petitioner and M/s. Prudential Plus Surety by binding themselves and their heirs, successors, executors and/or administrators accepting a liability to pay Rs. 10 crores to the President of India on the conditions stipulated thereto. The relevant portion of the bond reads such:

KNOW ALL MEN BY THESE PRESENTS and assigns that We M/s. ANMTARCTICA GRAPHICS LIMITED, Sector-I, Falta Export Processing Zone, carrying on business hereinafter called " the importers" (which expression shall mean and include our successors and our respective heirs, executors and administrators) and we M/S. PRUDENTIAL PLUS, (hereinafter referred to as "the Surety" ) which expression shall unless excluded by or repugnant to the context shall include our successors and assigns are jointly and severally held and firmly bound ourselves our successors and heirs executors and administrators unto the President of India (hereinafter called the Government) which expression shall unless repugnant to the context and meaning thereof will mean and include the successors and assigns in sum of Rs. 10,00,00,000/- (Rupees Ten Crores only). for which payment well and truly to be made we bind ourselves and each of us and each of our heirs, executors, administrators, successors and assigns jointly and severally unto the President of India firmly by these presents dated this the 1995.

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AND WHEREAS the said importer has been granted import licence OGL for import of capital goods for use in manufacture, processing in the said zone solely for export.

AND WHEREAS the Government by Notification in the Official Gazette vide Notification No. 262 dated 16-8-1985 (hereinafter called Notification), exempted such raw materials as are imported for the manufacture, processing and export promotion in the zone for exports, from the whole of duty of customs including additional duty leviable under the Customs Tariff Act, 1975 and auxiliary duty of Customs as leviable under the prevalent finance act and CTA 1975 as amended or any other law for the time being in force subject to certain terms and conditions and whereas one of the condition of the notification provides that bond will be executed for fulfilment of condition.

NOW THE CONDITION OF THE ABOVE WRITTEN BOND ARE THAT:

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(ii)That the goods covered under the Bond received by the importer shall not be mortgaged or pledged with any bank or party without obtaining prior permission in writing from the proper officer.

Sureties Name : Prudential Plus Sd/- M/s. Prudential Plus, Rohit Kuthari 132A/1B, Raja Rajendra Lal Mitra Road, Proprietor Calcutta -700 010. Signature of Surety Importers Name: Antartica Graphics Ltd. M/s. Antartica Graphics Limited, 1A, Vidyasagar Street, Sd/- Calcutta-700 009 Managing Director Signature of the Importer

On breach of the conditions of sanction to import capital goods, the Petitioner wrongfully mortgaged the property, namely, those capital goods, raw materials, machinery and other finished goods including the plant and machinery in favour of different financial institutions and banks. Such import of capital goods and raw materials was exempted from any custom duty and excise duty. While the goods were in warehouse, due to alleged electrical short-circuit at midnight of 11th January, 1996, the unit suffered a devastating fire. The writ Petitioner-appellant got the compensation from M/s. National Insurance Company Limited, the insurer and the amount was paid to the financial institutions where-from the writ Petitioner-appellant took loan under the agreement. On 15th June, 1998, a demand notice u/s 28(3)(ii) read with Section 72(d) of the Customs Act, 1962 and Section 11A(3)(ii)(b) of the Central Excise Act, 1944 amounting to Rs. 63886466/- being duty not levied together with interest at the rate of 18 per cent from 12th January, 1996 till the date of payment of the duty was served to the Petitioner. Petitioner submitted his representation against this notice. In the demand notice, the authority alleged that Petitioner received insurance claim for the insured value of the capital goods, raw materials etc. Petitioner took several grounds to assail this notice including limitation prescribed u/s 28 of the Customs Act, 1962, as also u/s 11A of the Central Excise Act, 1944. The said demand notice stood confirmed by the order dated 18th December, 1988.

Challenging this, writ Petitioner-appellant preferred an appeal to the Commissioner of Custom (Appeal), who dismissed his appeal by the order dated 20th August, 1999. Challenging this order, another appeal was preferred to the Tribunal, namely, Customs, Excise and Gold (Control) Appellate Tribunal, hereinafter for brevity referred to as "CEGAT", and Petitioner prayed for stay of recovery till disposal of the appeal. As in preferring the appeal, there was a condition of pre-deposit, a statutory condition, an order was passed by learned CEGAT on 24th March, 2000 2000 (123) E.L.T. 1196 (Tri. - Cal.)] directing the Petitioner to deposit Rs. 5 crores as pre-condition for hearing of the appeal. A review application as filed before the said Appellate Tribunal stood dismissed. Writ Petitioner-appellant moved an application under Article 226 of the Constitution of India registered as W.P. No. 2420 of 2000 against the said order of pre-deposit passed by the Appellate Tribunal. M.H.S. Ansari, J. (as His Lordship then was) on 18th September, 2000 passed an interim direction staying the operation of the impugned order subject to the condition of pre-deposit of 25 per cent of the impugned duty and furnishing of a bank guarantee on 25 per cent of the impugned duty, within four weeks. The order passed by His Lordship reads such:

Having heard the learned Counsel for the Petitioner as also for the Union of India, this Court is of the view that the writ petition needs to be heard on merits after affidavits.

Keeping in view the Petitioner has availed of the exemption under the Notification No. 133/94-Cus., dated 22-6-94 and also the benefit of the Notification No. 126/94-C.E., dated 2-9-94 with regard to exemption for the goods which were imported and with respect to payment of Central Excise Duty and also keeping in view that the said goods were required to be insured to safeguard the Revenue''s interest and also keeping in view the fact that the Petitioner has received about 14 crores of rupees from the insurance company but the contention of the Petitioner as regards exemption of duty on goods which are destroyed by fire also needs consideration inasmuch as the condition prescribed being this satisfaction of the Assistant Collector of Customs, duty shall not be leviably in respect of the goods or goods manufactured, produced, processed or packaged in the unit, if such goods are destroyed within the same and the case of the Petitioner being that they were as destroyed within the zone, an interim direction requires to be passed by this Court to safeguard the interest of the Petitioner as also that of the Customs Authorities pending disposal of the instant writ application.

Meanwhile, however, keeping in view the effect of the impugned order dated 24-3-2000, being Order No. 3-242/Cal/2000, passed by the Customs Excise Gold (Control) Appellate Tribunal, Eastern Branch, there shall be an interim direction staying operation of the said order and/or for disposal of the appeal filed by the writ Petitioner and pending before the CEGAT subject, however, to the following conditions;

(i) The Petitioner shall deposit 25% of the impugned duty which is the subject matter of the appeal before the Tribunal within a period of 4 (four) weeks from date,

(ii) The Petitioner shall furnish a Bank Guarantee for a further sum of 25% of the impugned duty within the said period of 4 (Four) weeks from date hereof.

In default of either condition, the interim stay hereby granted shall stand vacated.

Let the Respondents file their affidavit-in-opposition by 2-11-2000, affidavit-in-reply by 3 days thereafter and this matter will appear in the list as "Motion (adjourned)" on 10-11-2000.

All parties are to act on a xerox signed copy of this order on the usual undertaking.

A mandamus appeal was led by the present Appellant against the said order of M.H.S. Ansari, J. (as His Lordship then was), which stood dismissed on 28th September, 2000. Petitioner did not deposit the said amount. As a result, a notice u/s 152 of the Customs Act, 1962 read with Section 11 of the Central Excise Act, 1944 was issued on 9th February, 2001, asking the Petitioner to deposit the demanded amount of duty plus admissible interest on duty in compliance with the demand notice of 15th June, 1998. Another notice as a follow up action was issued on 16th March, 2001, threatening the recovery of the amount from the writ Petitioner-appellant. On 17th March, 2001, Petitioner served with an order directing that no goods of the Petitioner at Falta Export Processing Zone would be released without the order of the Respondent No. 3, who issued notice u/s 142 of the said Act. Petitioner challenged aforesaid notices dated 16th March, 2001 and 17th March, 2001 in W.P. No. 613 of 2001. Hon''ble Justice K.J. Sengupta on 2nd April, 2001 disposed of the said writ application with certain terms and condition and permitted the Petitioner to export goods as proposed to be processed by the Petitioner through Customs House. The order of His Lordship reads such:

The writ petition is disposed of finally, in my view, no useful purpose will be served by keeping this matter pending as this writ petition is directed against a manuscript order dated 17th March, 2001, which is at page 82 of the writ petition. By this order, the entire goods, which were proposed to be exported, have been withheld. In my opinion, this order will not subserve anybody''s interest either of the Petitioner or of the department concerned who is interested to get the alleged dues realised.

Accordingly, I set aside this order and I permit the writ Petitioner to export these goods as proposed. However, the entire proceeds, which shall be deposited with the concerned bank, shall be, after meeting all the necessary legal expenses, kept deposited with Mr. Jayanta Banerjee, a practising lawyer of this Court, who is appointed Special Officer for this purpose without security, and without remuneration for the time being.

The Petitioner as well as the bank concerned, shall make over all the supporting documents and the net amount of export as directed above to the Special Officer, Mr. Jayanta Banerjee. Mr. Jayanta Banerjee will open a separate account and for this purpose Mr. Debal Banerjee''s client will supply the necessary amount for opening this bank account. I make it clear that this amount shall be received in terms of the Court''s order and will have no bearing so far as his personal account is concerned. Mr. Jayanta Banerjee shall hold this amount in a separate Fixed Deposit Account to be opened in the Standard Chartered Grindlays Bank, Church Lane Branch, Calcutta, upon intimation to all the parties concerned.

The writ petition, which is pending, is to be heard on the Wednesday week i.e. on 11-4-2001 and the matter to appear in the list for hearing. This order is passed without prejudice to the rights and contentions of the parties including the pending proceedings.

As the affidavit-in-opposition has not been filed, the allegation contained in the writ petition are not admitted.

The Special Officer, concerned bank and all parties are to act on a xeroxed signed copy of this dictated order upon usual undertaking.

Petitioner was allowed to export goods in terms of the said order. The writ application in which the M.H.S. Ansari, J. (as His Lordship then was) being W.P. No. 2420 of 2000 passed interim order on 18th September, 2000, was finally disposed of by P.C. Ghose, J. by order dated 29th June, 2001, confirming said interim order. An appeal was led against it but nothing has been submitted about the fate of the said appeal before us.

The Respondent-Custom Authority has submitted before us, in course of hearing an Order No. A-1980-Cal/2000 passed in Appeal No. C/14/2000 being the appeal preferred by the writ Petitioner-appellant to the CEGAT, Eastern Branch, Calcutta. Wherefrom it appears that the said appeal stood dismissed on 30th November, 2000, due to non-deposit of the amount, a pre-deposit condition for maintainability of the appeal in terms of the direction of the High Court dated 18th September, 2000 passed by M.H.S. Ansari, J. The order reads such:

Vide the Order No. S-242/CAL/2000 dated 24-3-2000, the Appellants were directed to pre-deposit an amount of Rs. 5.00 crore within a period of eight weeks from the date of receipt of that order. Subject to deposit of the above amount, the balance amount of duty and penalty, if any, was dispensed with. Subsequently, the Appellants filed a Miscellaneous Application for modification of the above Order which Order was disposed of by the Tribunal, vide its Order No. M-880/CAL/2000 dated 5-7-2000, extending the period to deposit the amount by 15-9-2000. Thereafter, the Appellants approached the Honourable High Court of Calcutta who vide their Order dated 18-9-2000, directed the Appellants to deposit 25% of impugned dues and to give Bank Guarantee for another 25% within a period of four weeks from that date. The period of four weeks has since expired. When the matter came up for ascertaining compliance with the High Court''s Order, nobody is present on behalf of the Appellants. However, vide their letter dated 29-11-2000, they have informed that a SLP has been filed before the Honourable Supreme Court against the High Court''s Order on 16-10-2000. However, there is no Stay Order by the Hon''ble Supreme Court. On going through the Calcutta High Court" Order dated 18-9-2000, we find that there is a clear direction by the High Court that in case of default of either condition, an Interim Stay thereby granted, shall stand vacated. Inasmuch as they have not complied with the Order passed by the Hon''ble High Court, we dismiss the appeal for non-compliance.

Dictated in the open Court.

This appeal has been opposed by the Respondent-Custom Department by supporting the judgment under appeal.

The writ Petitioner-appellant has prayed the following reliefs in the present writ application W.P. No. 441 of 2002, the judgment of which is challenged in this appeal:

(a) A writ of and/or in the nature of Mandamus directing and commanding the Respondents and each of them to refrain from giving effect or further effect and/or acting on the basis of impugned instructions dated March 16, 2001 and from taking any further step or steps for recovery of any amount of duty or interest covered by the purported Demand Notice dated June 15, 1998 any further and in any manner whatsoever.

(b) A writ of and/or in the nature of Certiorari directing and commanding the Respondents and each of them to transmit the records relating to the case after certifying the same so that on perusal thereof, the Hon''ble Court may be pleased to quash and/or set aside the impugned action of the Respondents with consequential relief to the Petitioner on the basis thereof.

(c) Rule NISI in terms of prayers (a) and (b) above.

(d) Injunction restraining the Respondents and each of them their subordinates and agents from giving effect or further effect and/or acting on the basis of the impugned instruction dated March 16, 2001 forming annexure "P-11" hereof and from taking any step for recovery of any amount of duty or the interest covered by the demand notice dated June 15, 1998 forming annexure "P-6" hereto either by withholding the clearance of import consignment of the Petitioner or otherwise any further and in any manner whatsoever till the disposal of this application.

(e) Ad-interim order in terms of prayer (d) above.

(f) Costs of and incidental to this application be paid by the Respondents to the Petitioner.

(g) Such further or other order or orders be passed and/or direction or directions be given as to this Hon''ble Court may seem fit and proper.

In the earlier writ application W.P. 613 of 2001, which was disposed of on 2nd April, 2001, the Petitioner prayed the following reliefs:

(a) A writ of and/or in the nature of Mandamus directing and commanding the Respondents and each of them to recall and cancel the impugned notices dated February 15, 2001 and March 16, 2001 with retrospective effect and to refrain from acting on the basis thereof any further and in any manner whatsoever;

(b) A writ of and/or in the nature of Mandamus directing and commanding the Respondents to refrain from interfering with the day to day business of the Petitioner being carried on by the Petitioner at Falta Export Processing Zone and also to permit release of all goods of the Petitioner meant for export without any obstruction or impediments in any manner whatsoever;

(c) A writ of and/or in the nature of Certiorari directing and commanding the Respondents and each of them to transmit the records relating to the case after certifying the same so that conscionable justice may be administered on the basis thereof;

(d) Rule Nisi in terms of prayers above;

(e) That the Respondents and each of them their subordinates and officers are restrained by an ad-interim order of injunction from causing any interference to the on going business of the Petitioner at Falta Export Processing Zone or from withholding release of the goods of the Petitioner meant for export any further and in any manner whatsoever;

(f) That the Respondents are restrained by an ad-interim order of injunction from giving effect or further effect to the impugned notices dated February, 15, 2001 and March 16, 2001 or taking any steps pursuant thereto any further and in any manner whatsoever till the disposal of this application;

(g) Costs of and incidental to this application be paid by the Respondents to the Petitioner;

(h) Such further or other order or orders be passed and/or direction or directions be given as to this Hon''ble Court may seem fit and proper.

We called for the records of all earlier writ proceedings moved by the present Appellant. On perusal of the same, it appears to the Court that the notice dated 16th March, 2001, as challenged in the present writ application W.P. No. 441 of 2002 is not something new but it is continuation and follow up action of another notice dated 16th March, 2001, which lead to pass a manuscript order dated 17th March, 2001, restraining processing of any goods through the Customs House without order of the Deputy Commissioner of Customs, which were challenged in W.P. No. 613 of 2001 and under certain conditions as already mentioned earlier, said writ application was disposed of on 2nd April, 2001.

Furthermore, so far as the prayer restraining the Respondent-Customs Authority from taking any step about recovery of the amount of duty and interest covered under demand notice dated 15th June, 1998, it appears from the different writ proceedings and the order of the CEGAT that writ Petitioner-appellant moved an appeal before the Appellate Tribunal and being aggrieved by the order of pre-deposit, writ Petitioner moved this Writ Court, wherein an interim order dated 18th September, 2000 was passed by M.H.S. Ansari, J. (as His Lordship then was) directing the writ Petitioner to deposit 25 per cent of the demand and furnishing of bank guarantee on 25 per cent of the said demand. From the order of CEGAT dated 30th November, 2000, it appears that said appeal was dismissed due to non-deposit of the said amount, which was the condition precedent of maintainability of the said appeal before CEGAT.

Having regard to such, this Court is of the view that the learned trial Judge was absolutely right to reject the writ application as both the prayers as made were already decided in earlier writ applications and the present writ application is nothing but an abuse of the process of law. It is not only attracted by the principle of res-judicata but a gross abuse of the process of law for which the Petitioner is liable to pay the cost of the proceeding. The action of the writ Petitioner-appellant is also an contemptuous action under criminal contempt concept in view of filing of the repeated writ applications on the identical cause of action following the judgment passed by the Apex Court in the case Arunima Baruah Vs. Union of India (UOI) and Others, as relied by Apex Court in the case Udyami Evam Khadi Gramodyog Welfare Sanstha and Another Vs. State of U.P. and Others, , as core issue of earlier writs and present one, is only to resist the demand notice dated 15th June, 1988.

Before parting with the matter, in course of hearing of the appeal, learned advocate for the Appellant submitted new point though it was not pleaded at all in the writ application, namely, that an application seeking remission of Custom duty u/s 23 of the Customs Act, 1962 was filed but the same was not disposed of. Section 23 reads such:

Remission of duty on lost, destroyed or abandoned goods.- (1)

[Without prejudice to the provisions of Section 13, where it is shown] to the satisfaction of the [Assistant Commissioner of Customs of Deputy Commissioner of Customs] that any imported goods have been lost [otherwise than as a result of pilferage] or destroyed, at any time before clearance for home consumption, the [Assistant Commissioner of Customs of Deputy Commissioner of Customs] shall remit the duty on such goods.

[(2) The owner of any imported goods may at any time before an order for clearance of the goods for home consumption u/s 47 or an order for permitting the deposit of goods in a warehouse u/s 60 has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon.]

[Provided that the owner of any such imported goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force.]

From the representation filed against the demand notice, which was confirmed thereafter up to the CEGAT by order of dismissal of the appeal, this point also was taken. The word "remission of duty" is the catchword of Section 23 in the event of contingencies as mentioned thereto. The word "remission" presupposes levy of duty first and thereafter remission thereof under contingency as stipulated in the said Section. In the instant case, we are of the view that the said Section has no applicability for the sole reason that the writ Petitioner-appellant was allowed to import the goods on exemption of Custom Duty and Excise Duty. Since there was an exemption on duty, no question of remission would arise. Said Section is applicable when duty is paid, thereafter any of the contingencies as stipulated in the said Section occurs. Accordingly, the contention of the Appellant has no merit. Furthermore, the issue is now dead one, in view of dismissal of appeal before the CEGAT.

Considering all aspects of the matter and having regard to the conduct of the writ Petitioner-appellant about moving different writ applications one after another on different pretext with central lis of demand notice and its effect, a gross abuse of the process has been caused. The Appellant used the machinery of the High Court as a liver to resist the demand of Custom Authority, which lawfully has been confirmed. Considering that, the Appellant is liable for payments of cost due to such conduct.

On the basis of our aforesaid findings and observation, appeal stand dismissed with a cost of Rs. 50,000/- to be paid to the Respondent-Customs Authorities within two months from this date. The judgment under appeal stand confirmed except the portion of the order, namely, "all points were kept open" which stand quashed. Impugned judgment to that extent stand modified by dismissing the writ application.

ORDER

Manik Mohan Sarkar, J.

I agree,

Later:

Urgent xerox certified copy of this judgment and order be made available to the parties, if applied for the same, upon compliance with all requisite formalities.