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1. M/s. Texcomash Export have filed this Appeal against Order-in-Original No. 56/2000, dated 28-11-2003 by which the Commissioner of Customs has disallowed the drawback claimed by them and has imposed a penalty on them under Section 114 (iii) of the Customs Act.

2. Shri A.K. Jain, learned Advocate, mentioned that the Appellants had made 29 export shipments of Children's garments through ICD, Tuglakabad, New Delhi during November, 1993 to June, 1994 and 9 export shipments of ladies garments through Mumbai Customs House during September, 1994 to October, 1994; that the proper officer at ICD New Delhi reduced the FOB value to Rs. 210/- per set of garments and granted drawback claims; that the Government of India, by Order No. 406/99, dated 26-3-1999, has fixed the FOB value to be Rs. 242/- per set and has ordered that the amount of draw back be settled as per 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 Court, the Government, in its counter affidavit, has accepted the value of Rs. 242/- for the purpose of their entitlement to draw back; that their writ is pending before the Delhi High Court. He, further, submitted that in respect of departmental Adjudication, the doctrine of res judicata very much applies. He relied upon the following decisions -

"Government feels that treating the ascertained market price at Rs. 210/- per set as the cost price of the impugned goods and by adding the above arrived at difference of 15% on account of transportation and other expenditure, the amount so arrived should approximate FOB i.e. Rs. 242/-.

Government would accordingly fix the FOB of the impugned goods at Rs. 242/- per set and the amount of drawback thereon may be settled as per law."

6. It is thus apparent that the Government of India, in its power as Revisionary Authority, has accepted the market price of Rs. 210/- fixed by the Department after conducting market enquiries twice and the Government has fixed the FOB at Rs. 242/- per set after adding 15% in the market price on account of transportation cost and other expenses. This fixation of FOB value has achieved finality as far as the Revenue is concerned as they have not challenged the same in an appropriate forum. Infact the averment of the Appellants that the Government has justified the determination of FOB price in the counter affidavit filed by it reply to the Writ Petition filed by the appellants in the High Court challenging the Order-in-Revision, has not been controverted by Revenue. In view of these facts, it is not open to the Department to start fresh proceedings regarding valuation of the goods exported by the Appellants and consequent sanction of draw back. There is no force in the submission of the learned Senior Departmental Representative that the documents on the basis of which the impugned show cause notice has been issued were not before the Revisionary Authority or the Department. We observe that the Revisionary Authority remanded the matter in August, 1995 for making fresh enquiries by which time already a preliminary report dated 21-6-1995 had been received by the Department from the Russian Customs which was followed by another report dated 24-7-1995 informing that the investigation by Russian Customs concerning the delivery of Children's sets from Texcomash Export to Russia revealed violation of Indian and Russian Customs laws and that the investigations suggested two complete sets of commercial documents. There was nothing to prevent the Revenue to the new information received by them in determining the FOB value of the impugned garments. Now once the FOB value has been determined in quasi-judicial proceedings, the Revenue can not open the same without challenging the Order in the higher 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 ingredients upon which the administration of justice must rest, and subsequent events do not affect the decision."