TMI Blog2013 (11) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal shall be accompanied by a fee - The President of the Appellate Tribunal has no jurisdiction to transfer the matter from the permanent Bench at Mumbai to a Bench at Chennai by way of an administrative order. Jurisdiction to entertain the appeal – against the order passed by CESTAT, Chennai Bench with regard to a matter originated from the adjudicating authority located at Mumbai - Held that:- On the ground of difficulties in conducting the case at Mumbai, the petitioner has given a request to the President to transfer the case - the transfer was without notice to the Customs Department - When the CESTAT passed an order allowing the appeal, the petitioner wanted further proceedings to be conducted only in Mumbai, presumably on the ground that the judgment rendered by the Bombay High Court in a similar matter, would enable them to get the appeal dismissed – there was no merit in the contentions raised by the petitioner with regard to the objection to the territorial jurisdiction of the Court to hear the appeal - The Court has jurisdiction to entertain the appeal filed by the Commissioner of Customs challenging the order passed by the South Zonal Bench of CESTAT at Chennai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods were actually utilised in the export of products or not. The Commissioner after verifying the available documents arrived at a factual finding that there were no contemporaneous documents to allow conversion. Accordingly the application was once again rejected. The said order dated 28 May, 2007 was challenged by the petitioner before CESTAT, Bombay. During the pendency of appeal, the petitioner made a specific request to the President of the Tribunal for transfer to Chennai and accordingly, the appeal was transferred to Chennai Bench. The CESTAT, Chennai allowed the appeal. The said order was challenged by the department before this Court in C.M.A. No. 87 of 2010. 4. The appeal was heard on merits and ultimately the matter was remitted to the original authority for fresh consideration with liberty to the petitioner to produce contemporaneous documents for verification. It is the said order which is sought to be reviewed at the instance of the petitioner principally on the ground of jurisdiction. Submissions: 5. The learned Senior Counsel for the petitioner confined his arguments with regard to the question of jurisdiction alone, even though other grounds were al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st them in view of the decision of B:: High Court in Commissioner of Customs v. Man Industries (I) Ltd. [2007 (216) E.L.T 15 (Born.)]. The learned counsel submitted that the appeal should have been filled before the High Court at Mumbai in which case, the assessee would be in position to take advantage of the judgment of Bombay High Court. However, when we pointed out that it was a case of transfer to the Chennai Bench and as such, the department was justified in filing the appeal before the jurisdictional High Court, the learned counsel conceded and made his submissions on merits. Accordingly we heard the arguments of the learned counsel on either side and judgment was reserved. The order of remand and the direction to consider the matter afresh made the petitioner to file this review petition as an after-thought projecting a case of lack of jurisdiction. The Authorities cited by the petitioner: 10. The learned Senior Counsel for the petitioner placed reliance on the following judgments in support of his contention that the appeal should have been filed before the Bombay High Court as the adjudicating authority is at Mumbai. (i) Ambica industries v. Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on the said application. 12. The learned Senior Counsel produced the application submitted by the petitioner for transfer and the order passed by the Tribunal and submitted that the President of the Appellate Tribunal has passed an administrative order without notice to the Customs Department, transferring the appeal from CESTAT, Mumbai to the Chennai Bench of the Tribunal. According to the learned Senior Counsel it has been the practice of the President of Appellate Tribunal to make such administrative transfers at the instance of any one of the parties and the present transfer was made on the basis of an application sent by the petitioner on 12 September, 2008. In the said application the petitioner has explained their difficulties to appear before the Mumbai Bench as it involves multiple trips and wastage of time and money. The Registry of the Appellate Tribunal placed the matter before the President and accordingly the appeal was transferred as per order dated 29 October, 2008. The learned Senior Counsel further contended that in case the opposite party is aggrieved by the order of transfer, it is always open to them to approach the President to recall the order. Procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arnestly request you to transfer this appeal to the Chennai Bench for disposal on 14th Oct. when it has now been fixed before the Mumbai Bench. We would be greatly obliged for your favourable consideration of our aforesaid request. We are only seeking this request from you in your administrative Capacity. Also this is not a request before any Bench of the Hon ble Tribunal and hence we are not making any payment of fee as contemplated under Section 129A(7) of the Customs Act for this transfer request. Thanking you Yours faithfully, For ARE VA T D India Limited Sd! (L.V Srinivasan) Director - Treasury and Taxation 1.4. The Registrar of the Appellate Tribunal informed the petitioner about the order passed by the President transferring the case by way of his communication dated 29 October, 2008. The said communication reads thus: Customs, Excise and Service Tax Appellate Tribunal West Block -2, R.K. Puram New Delhi - 110 066 Dated : 29-10-2008 To Shri M.P. Kasale Assistant Registrar CESTAT Mumbai. Subject :- Transfer of appeal from Mumbai to Chennai Bench. Custom Appeal No. C/574/07-Mum Please refer to your letter dated 16th Oct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) of the Customs Act, and by passing an administrative order. Therefore, we agreed to consider the said issue. Nature of the order passed by the President of Appellate Tribunal: 18. The basic question is whether the Appellate Tribunal was vested with the power to transfer a case from one Bench situated in a particular State to another Bench functioning in another state invoking Section 129C(6) of the Customs Act. Section 129C(6) reads thus: Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its power or of the discharge of its functions, including the places at which the Benches shall hold their sittings. 19. The Appellate Tribunal is deemed to be a Civil Court for the purpose of discharging its functions. 20. Sections 129C(7) and C(8) reads thus: Section 129C(7): The Appellate Tribunal shall, for the purposes of discharging its functions, have the same powers as are vested in a Court under the code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matters judicially. In case transfers are made unilaterally without the knowledge of other side, naturally the opposite party would be taken by surprise. It would also encourage forum shopping. 25. The petitioner has sent a letter directly to the President by courier to transfer their case to Chennai Bench. The Appellate Tribunal is a Court within the meaning of Section 129C(7) of the Customs Act. The proceeding before the Tribunal is a judicial proceeding. The President is the head of the Appellate Tribunal. Therefore it is not proper on the part of the Tribunal or its President to entertain correspondence with litigants directly with regard to matters pending before it. In fact, Section 129A (7) of the Customs Act provides that any application filed before the Appellate Tribunal shall be accompanied by a fee of Rs. 500/-. It was only to overcome this statutory prescription, the petitioner has sent an application directly to the President, without presenting it before the Registry indicating that they are not making any payment of fee as contemplated under Section 129A(7) of the Customs Act as their request is to transfer only in the administrative capacity. 26. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay invoke the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay. 38. We have noticed hereinbefore that if the decision of the High Court in the aforementioned question is taken to its logical conclusion, the same would lead to a great anomaly. It would also give rise to the problem of forum shopping. We may notice some examples to show that the determination of the appellate forum based upon the situs of the tribunal would lead to an anomalous result. For example, an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it which may be contrary to judgments of the High Court of Bombay. This cannot be allowed. (See Suresh Desni and Associated v. CIT 1TR at pp. 915-17 and CCE v. Technological Institute of Textile). 31. The judgment in Ambica Industries has no application to the facts of this case. In fact, the learned Senior Counsel for the petitioner very fairly submitted that there are no judgments on the question of jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g against Jayendra Saraswati Swamigal before the Sessions Court at Chengalpattu, situated in the State of Tamil Nadu was transferred to the Principal District and Sessions Judge, Pondicherry by the Supreme Court. When an attempt was made by the State of Tamil Nadu to appoint a Special Public Prosecutor to conduct the prosecution at Pondicherry, the Supreme Court held that it is only the jurisdictional State which has got jurisdiction to appoint the Special Public Prosecutor. 40. The petitioner is a Multinational Company having their office at Mumbai, Chennai and Calcutta. The cause title itself shows the Mumbai address of the Company. It is a matter of surprise that a party having full-fledged office at Mumbai opted for transfer of a particular case to Chennai. In any case, on the ground of difficulties in conducting the case at Mumbai, the petitioner has given a request to the President to transfer the case. Admittedly, the transfer was without notice to the Customs Department. When the CESTAT passed an order allowing the appeal, the petitioner wanted further proceedings to be conducted only in Mumbai, presumably on the ground that the judgment rendered by the Bombay High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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