Pratap Kumar Ray, J. - (1.) 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 under Sec. 142of the Customs Act, 1962 read with Sec. 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 Sec. 150 of the Customs Act, 1962 read with Sec. 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 Sec. 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 under Sec. 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. Sec. 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 under Sec. 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.
(2.) 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. ... 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: 1 ... 2 ... 3 ... 4 ... 5 ... 6. (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
(3.) 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 under Sec. 28(3)(ii) read with Sec. 72(d) of the Customs Act, 1962 and Sec. 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 under Sec. 28 of the Customs Act, 1962, as also under Sec. 11A of the Central Excise Act, 1944. The said demand notice stood confirmed by the order dated 18th December, 1988.;