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COMMISSIONER OF CENTRAL EXCISE, VAPI Versus PARLE AGRO PVT LTD & 1

2015 (12) TMI 259 - GUJARAT HIGH COURT

Jurisdiction of court - Territorial jurisdiction - whether this court has the jurisdiction to entertain and decide the appeal preferred by the respondent against the order passed by the Tribunal in a case where the assessee whose manufacturing unit from which the dispute arises is situated at Silvassa in the Union Territory of Dadra and Nagar Haveli, and where the Order-in-Original had been passed by the Commissioner of Central Excise and Customs, Vapi and the appeal against the said order has b .....

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vassa have been conferred jurisdiction to decide cases upto a particular pecuniary limit and beyond such limit such jurisdiction has been conferred on the Commissioner of Central Excise and Customs, Vapi. The present case being beyond the pecuniary limits of the authorities situated at Silvassa, it is the Commissioner of Customs, Vapi, who has exercised jurisdiction and issued the show-cause notice and has adjudicated the same. Nonetheless, insofar as the respondent assessee is concerned, it fal .....

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ection 36(b)(iii) of the Act, it is the High Court at Bombay which would be the High Court having jurisdiction to entertain and decide an appeal against the order passed by the Tribunal. - Decided in favour of revenue. - CIVIL APPLICATION (OJ) NO.205 of 2015, TAX APPEAL NO.1388 of 2014 - Dated:- 7-10-2015 - MS. HARSHA DEVANI AND MR. A.G.URAIZEE, JJ. FOR THE APPELANT : MR RJ OZA, ADVOCATE FOR THE RESPONDENT : MR BHARAT RAICHANDANI, ADVOCATE with MR HARSH N PAREKH, ADVOCATE ORAL ORDER (PER : HONOU .....

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after referred to as the Tribunal ) which passed the order which is subject matter of appeal is situated in Ahmedabad, according to the applicant, does not confer jurisdiction upon this court to entertain this appeal and determine the issues arising therein. 2. The facts stated briefly are that the respondent - original appellant is a company whose place of business is located at village Sayli, Silvassa within the Union Territory of Dadra and Nagar Haveli. The Commissioner of Central Excise and .....

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ried the matter in appeal before the Tribunal at Ahmedabad. By an order dated 28th October, 2014 which is subject matter of challenge in the main appeal, the Tribunal dismissed the appeal and upheld the order passed by the adjudicating authority, against which the respondent - appellant has preferred the present appeal which came to be admitted by an order dated 24th December, 2014 on two questions of law as recorded in the said order. Subsequently, the applicant herein, who is the original resp .....

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t, it would be the High Court at Bombay which would have the jurisdiction to entertain and decide the appeal, notwithstanding the fact that the seat of the Tribunal which delivered the order impugned in the appeal may be at Ahmedabad. In support of such submission, the learned counsel placed reliance upon an order dated 4th May, 2015 passed by this court in the case of Riva Packaging Solutions Private Limited v. Commissioner of Service Tax rendered in Civil Application (OJ) No.384/2015, wherein .....

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pi v. Castrol India Limited in Tax Appeal No.93/2012, wherein the court had observed that the respondent assessee was situated at Silvassa and hence, in view of the provisions of section 36(b) of the Act, it is the Bombay High Court which would have the jurisdiction to entertain the appeal against the impugned order and not this High Court. Reference was also made to an order dated 16th January, 2013 passed by this court in Commissioner, Central Excise Customs and Service Tax Department v. Shree .....

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, the application deserves to be allowed and the appeal preferred by the respondent is required to be dismissed as being not maintainable before this court. 4. On the other hand, Mr. Bharat Raichandani, learned counsel with Mr. Harsh Parekh, learned advocate for the respondent, strenuously attempted to convince the court to take another view and either hold that the earlier decisions of this court are per incuriam or to refer the issue to a larger bench of this court. The learned counsel submitt .....

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High Court which has the territorial jurisdiction to entertain the appeal. It was submitted that the show-cause notice was issued by the Commissioner of Central Excise and Customs, Vapi which Commissionerate falls within the territorial jurisdiction of the High Court. The showcause notice was confirmed by the Commissioner of Central Excise and Customs, Vapi and the appeal against such order came to be decided by the Tribunal at Ahmedabad. Thus, both, the original as well as the final order which .....

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ting authority which is subject matter in dispute and not the unit of the respondent No.1 at Silvassa since the order in dispute is the order passed by the Commissioner, Vapi and hence, this High Court would be the High Court for the purpose of sub-section (1) of section 35G of the Act. Reference was made to the decision of the Delhi High Court in the case of Suresh Desai and Associates v. Commissioner of Income Tax, 1998 (230) ITR 912, wherein it has been held that questions of law arising for .....

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was pointed out that the High Court has held that the appeal under section 35G must be filed only in the High Court which has the jurisdiction over the authority from whose order the proceedings had originated. It was submitted that in the facts of the present case, the proceedings had originated from the order of the Commissioner of Central Excise and Customs at Vapi which falls within the jurisdiction of this High Court and therefore, the appeal has rightly been filed in this court. Reference .....

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ibunal is not relevant in deciding the jurisdiction of the High Court. The question of law arising for decision in a reference should be determined by the High Court which exercises territorial jurisdiction over the situs of the Assessing Officer or the adjudicating authority. It was submitted that testing the facts of the present case on the anvil of the principles enunciated in the above decision, the situs of the adjudicating authority is Vapi, the show-cause notice was issued by the Commissi .....

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gh Court is not binding on appellate authority or adjudicating authority of a different territorial jurisdiction. It was submitted that the Tribunal at Ahmedabad or the adjudicating authority at Vapi is bound to follow the decision or direction issued by the High Court. Therefore, the appeal filed in the present case becomes meaningless if filed before the Bombay High Court as the Tribunal at Ahmedabad or the adjudicating authority at Vapi does not fall within the territorial jurisdiction of the .....

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t, taking a contrary view, are per incuriam. 5. The short question that arises for consideration in this application is as to whether this court has the jurisdiction to entertain and decide the appeal preferred by the respondent against the order passed by the Tribunal in a case where the assessee whose manufacturing unit from which the dispute arises is situated at Silvassa in the Union Territory of Dadra and Nagar Haveli, and where the Order-in-Original had been passed by the Commissioner of C .....

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y of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. 36. Definitions - In this Chapter - (b) High Court means, - (i) in relation to any State, the High Court for that State; (ii) in relation to a Union Territory to which the jurisdiction of the High Court of .....

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, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment, if the High Court is satisfied that the case involves a substantial question of law. Clause (b) of section 36 defines High Court to mean (i) in relation to any State, the High Court for that State and clause (iii) in relation to Union Territories of Dadra and Nagar Haveli, Goa, Daman and Diu, the High Court at Bombay. Thus, in relation to Union Territory .....

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n support of such submission, the learned counsel placed reliance upon the above referred decision of the Delhi High Court in the case of Bombay Snuff Private Limited v. Union of India (supra) and the decision of the Supreme Court in the case of Ambica Industries v. Commissioner of Central Excise (supra) for contending that it is the seat of the adjudicating authority which confers the jurisdiction upon the concerned High Court. 8. It may be significant to note that the Supreme Court in the case .....

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ivate Limited v. Union of India, the Delhi High Court referred to its earlier decision in the case of Commissioner of Central Excise v. Technological Institute of Textile, 1998 (47) DRJ 667, wherein it was held that an appeal under section 35G must be filed only in the High Court which has jurisdiction over the authority from whose order the proceedings have originated. The court held that the fact that the main seat of the CESTAT was situated in Delhi or that the appeal was heard and decided at .....

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sdiction of the same court. The peculiar situation that arises in the present case is that while all adjudicating authority and all the appellate authorities are situated within the territorial jurisdiction of the State of Gujarat, the manufacturing unit in relation to which the dispute arose is situated in the Union Territory of Dadra and Nagar Haveli and by virtue of the provisions of section 36(b)(iii), it is the High Court at Bombay which is the High Court in relation to such Union Territory .....

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jurisdiction to decide cases upto a particular pecuniary limit and beyond such limit such jurisdiction has been conferred on the Commissioner of Central Excise and Customs, Vapi. The present case being beyond the pecuniary limits of the authorities situated at Silvassa, it is the Commissioner of Customs, Vapi, who has exercised jurisdiction and issued the show-cause notice and has adjudicated the same. Nonetheless, insofar as the respondent assessee is concerned, it falls within the jurisdictio .....

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relates to the Union Territory of Dadra and Nagar Haveli. It is only because of the fact that the amount involved exceeds the pecuniary jurisdiction of the central excise authorities situated at Silvassa, that the Commissioner of Central Excise and Customs, Vapi has exercised jurisdiction in the present case. Under the circumstances, since the matter arises in relation to the Union Territory of Dadra Nagar and Haveli, under the provisions of section 35G(1) read with section 36(b)(iii) of the Act .....

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he Tribunal at Ahmedabad, appeal would lie to the High Court at Bombay and not to this High Court in view of the provisions of section 36(b)(iii) read with section 35G of the Act. For the reasons recorded hereinabove, this court is not in agreement with the contention advanced by the learned counsel for the respondent that the above referred decisions rendered by this court are per incuriam. This court is also of the opinion that no case has been made out for referring the matter to the Larger B .....

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and Nagar Haveli is vested in the High Court at Bombay, it is the said High Court which is the jurisdictional court in relation to matters arising from the said Union Territories. Therefore, notwithstanding the fact that the seat of the first appellate authority or the Tribunal may be situated within the territorial jurisdiction of the High Court at Gujarat, in view of the provisions of section 35G read with section 36(b)(iii), it would be the Bombay High Court which would be the jurisdictional .....

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