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TMI Blog2013 (11) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... e statutory Appeal by remanding the matter to the Commissioner (Customs), Mumbai for fresh disposal, with an opportunity to produce documents. 2. The application is to review the judgment dated 11 July, 2011 principally on the ground of lack of jurisdiction to entertain the appeal. The facts: 3. The petitioner exported transformers and its spares under duty free shipping bills during the period between June, 2003 and December, 2003. At a later point of time, the petitioner made an application before the statutory authority, requesting conversion of those shipping bills into DEEC shipping bills against three advance licences. Their request dated 6 January, 2005 was rejected by the Commissioner of Customs, Mumbai as per order dated 23 January, 2006. The said order was challenged before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as "CESTAT"), Mumbai. The CESTAT remanded the matter with a direction to the Commissioner of Customs to verify the contemporaneous documents and to decide the matter afresh. The matter was thereafter taken up for consideration by the Commissioner of Customs. The Commissioner found that there was considerable delay in ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on behalf of the first respondent contended that this Court is having jurisdiction to entertain the appeal filed against the order passed by CESTAT, Chennai. It was his further contention that the Chennai Bench was given the jurisdiction to take up the matter on account of the order of transfer made by the President of the Tribunal and as such, for all practical purposes, this Court is the jurisdictional High Court competent to consider the challenge made to the order. Therefore, the petitioner has not made out a case for review and their remedy is to file an appeal before the Supreme Court. Analysis: 7. Even though the scope of review jurisdiction is very limited, we entertained the review petition in view of the substantial question raised by petitioner with regard to jurisdiction. 8. Before considering the challenge made to the order on the ground a jurisdiction, we deem it fit to refer briefly the submissions made by the learned counsel on record during the time of final hearing of the Civil Miscellaneous Appeal. 9. When the Civil Miscellaneous Appeal was taken up for final hearing the learned counsel, who appeared on behalf of the petitioner and who has filled the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 264 (Del.) (xiv) Stridewell Leathers Private Ltd. v. Bhankerpur Simbhaoli Beverages Private Ltd. - (1994) 1 SCC 1 (xv) Suraj Woollen Mills v. Collector of Customs, Mumbai - 2000 (123) E.L.T. 471 (Del.) (xvi) Brindavan Beverages Private Ltd. v. Commissioner of Central Excise - 2010 (20) S.T.R. 283 (Del.) = 2009 (237) E.L.T. 658 (Del.) (xvii) CIT v. S. Sivaramakrishnan Iyer - AIR 1969 Mad. 300 (xviii) Kusum Ingots & Alloys Ltd. v. Union of India - 2004 (168) E.L.T. 3 (S.C.). 11. The Supreme Court in Ambica Industries v. Commissioner of Central Excise - 2007 (213) E.L.T. 323 (S.C.) considered the question of jurisdiction with reference to the seat of the Tribunal and opined that notwithstanding the seat of the Tribunal, the jurisdictional High Court alone has got jurisdiction to take up the appeal filed against the order passed by CESTAT. Since the jurisdictional issue in Ambica Industries was on account of the seat of the Tribunal and the transfer in this case was on account of the order passed by the President of the Appellate Tribunal, we directed the learned Senior Counsel to produce the application filed by the petitioner for transfer and the order passed by the President ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osted before any Bench. After this release, the case was posted before the Bench. After this release, the case was posted on 10th June and again to 10th July, when it was adjourned at the request of the Dept. It was posted on 26th Aug. and it got adjourned again to 10th Sep. since one of the Members had fallen sick and did not turn up. When the matter came up on 10th Sep., the Dept. sought adjournment because of some internal transfers and the DR who is handling this case, being in the process of handing over to the new incumbent. Now the case is posted for 14th Oct. 2008. We are based at Chennai and in fact we are attached to the LTU (Large Tax Payer Unit) at Chennai. You will appreciate the difficulties that we would have encountered by eleven adjournments as above. It may also be relevant to mention that the counsel who is handling this case for us is also from Chennai. Thus there has been enormous wastage of time and money for us, in terms of multiple futile trips to Mumbai. On top of the very purpose of early hearing is lost. It is now more than one year since the Hon'ble Bench allowed our early hearing application. Considering the above facts, we earnestly request you to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h paper book for further action at your end. Please acknowledge the receipt of the same. Yours faithfully, Sd! (M.P Kasale) Assistant Registrar, CESTAT MUMBA!" 16. According to the learned Senior Counsel the transfer order passed by the President was only an administrative order and not a judicial order and as such, no notice was issued to the Customs Department. It was the further contention of the learned Senior Counsel that the Customs Department is having offices throughout India and as such, no prejudice would be caused to them in case the appeal is transferred from one Bench to another Bench in a different State. The learned Senior Counsel further submitted that the President is having jurisdiction under Section 129C(6) of the Customs Act to pass such administrative orders for the purpose of transfer of pending matters. 17. The learned Senior Counsel fairly submitted as on date that there is no decision rendered by any of the High Courts or Supreme Court on the point as to whether the President is empowered to transfer a case from one State to another, invoking Section 129C(6) of the Customs Act, and by passing an administrative order. Therefore, we agreed to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n procedure, the said provision does not expressly confer power on the Appellate Tribunal to transfer matters on administrative side. The Appellate Tribunal is deemed to be a Civil Court. Therefore, transfer of proceedings from one Bench to another Bench situated in a different State, can be made only by way of a judicial order. The present case is not a transfer from one Bench to another Bench functioning in the very same State. In case there are two or more Benches in a particular State, it is always open to the Appellate Tribunal to transfer a particular matter from one Bench to another in case it is made out that the other Bench is not functioning or for any other justifiable reason. 23. The Tribunal at Mumbai is bound by the Law declared by the Bombay High Court. The Tribunal at Madras is expected to decide the matters on the basis of the law laid down by the Madras High Court. Therefore, the Appellate Tribunal cannot transfer matters in a casual manner on administrative side without deciding the issue judicially. 24. The order regarding transfer involves exercise of jurisdiction under the Customs Act. The Appellate Tribunal is given the powers of a Court under the Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the High Court to entertain an appeal. The Supreme Court found that the Appellate Tribunal was exercising the jurisdiction over three States and in all the three States there are High Courts and in the said context it was observed that the situs of the Appellate Tribunal alone would not give jurisdiction to the High Court. The Supreme Court said: "13. The Tribunal, as noticed hereinbefore, exercise jurisdiction over all the three States. In all the three States there are High Courts. In the event, the aggrieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Court or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferee Bench has to the challenged only before the jurisdictional High Court. In the present case, this Court is the jurisdictional High Court and as such, the first respondent was fully justified in filing the appeal before this Court. 36. The learned Senior Counsel for the petitioner drew our attention to the judgment of Supreme Court in Canon Steels P. Ltd. v. Commr. of Customs (Export Promotion) - 2009 (15) S.T.R. 97 (S.C.) = 2007 (218) E.L.T. 161 (S.C.) and submitted that a different view was taken by another Bench without considering the earlier judgment in Ambica Industries. 37. In Canon Steels, the Supreme Court held that the High Court at Delhi has jurisdiction to deal with the matter challenging the order passed by CESTAT at New Delhi, notwithstanding the fact that the original order was passed by the authority functioning within the jurisdiction of Punjab and Haryana High Court. 38. Therefore, in a case of this nature, arising out of an order of transfer, the situs doctrine has no application. 39. The right of a transferee State to appoint a Public Prosecutor came up for consideration before the Supreme Court in Jayendra Saraswati Swamigal v. State of Tamil Nadu (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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