TMI Blog2007 (5) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... in which appeals would lie under Section 35G(1) of the Central Excise Act. 3. Appellant herein carries on business at Lucknow. It was assessed at the said place. The matter, however, ultimately came up before Central Excise and Service Tax Appellate Tribunal (CESTAT), New Delhi in Appeal No. E/2792/02-NBC. The said Tribunal exercises jurisdiction in respect of cases arising within the territorial limits of the State of Uttar Pradesh, National Capital Territory of Delhi and the State of Maharashtra. 4. Having regard to the situs of the Tribunal, an appeal in terms of Section 35G of the Central Excise Act, 1944 was filed before the Delhi High Court. A Division Bench of the said Court relying on or on the basis of an earlier Division Bench judgment in Bombay Snuff Pvt. Ltd. v. Union of India, 2006 (194) E.L.T. 264 opined that it had no territorial jurisdiction in the matter. 5. Mr. C. Hari Shankar, learned counsel appearing on behalf of the appellant would submit that despite the fact that sub-section (9) of Section 35G of the Act was brought to the notice of the High Court, the court refused to consider the effect thereof in determining the question of its jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Code of Civil Procedure, 1908 mutatis mutandis to the appeals to the High Courts, recourse to which could be taken for challenging the final orders of the Tribunal before the High Court. Post 1999, two provisions, namely, Section 35G and Section 35H were made available, the relevant provisions whereof are as under:- "35G. Statement of case to High Court. - (1) The Commissioner of Central Excise or the other party may, within sixty days of the date upon which he is served with notice of an order under section 35C passed before the 1st day of July, 1999 (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 purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation presented within the time specified in sub-section (1). (4) If, on an application made under sub-section (1), the High Court directs the Appellate Tribunal to refer the question of law raised in the application, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such direction, draw up a statement of the case and refer it to the High Court." 10. Similar problems have arisen in respect of the decisions rendered by Tribunals constituted under different Acts, for example Income Tax Act. We are also not unmindful of a catena of decisions rendered by some High Courts that situs of the Tribunal is the determinative factor for reference and/or appeal before the High Court. 11. The question incidentally came up for consideration before a 5 Judge Bench of this Court in Nasiruddin v. S.T.A. Tribunal, AIR 1976 SC 331 wherein, inter alia, it was held :- "37. To sum up, our conclusions are as follows. First, there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the Order. Second, the Chief Justice of the High Court has no power to increase or de creas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said proposition of law it may be noticed that the decision of a Tribunal would be binding on the Assessing Authority. If the situs of the appellate Tribunal should be considered to be the determinative factor, a decision rendered by the Tribunal shall be binding on all the authorities exercising its jurisdiction under the said Tribunal. 13. The Tribunal, as noticed hereinbefore, exercises 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 litus, 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 Courts or Courts or Tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel, as noticed hereinbefore, is inconsistent and contradictory. The doctrine of dominus litus or doctrine of situs of the Appellate Tribunal do not go together. Dominus litus indicates that the suitor has more than one option, whereas the situs of an Appellate Tribunal refers to only one High Court wherein the appeal can be preferred. We may consider two hypothetical cases in order to enable us to find out an answer. A Tribunal may hear out a matter either at Allahabad or at Bombay and pass a judgment at that place. Only because the head office is situated at Delhi, would it mean that a judgment delivered at Allahabad or at Bombay would not attain its finality then and there. 19. We may notice some incongruities if the contention of the appellant is taken to its logical conclusion. It is possible that in a case of emergency while the Tribunal holding its sitting at Allahabad or Bombay may entertain a matter where the cause of action had arisen at Delhi. But that would not mean that when the Tribunal pronounces its judgment at Allahabad or Bombay, although the cause of action had initially arisen at Delhi, the Delhi High Court would have no jurisdiction in relation th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 66(1) of the Act. The only relevant provisions in the Act are those in Section 66. Section 66(1) merely states that within the time mentioned therein, the assessee or the Commissioner may require the Appellate Tribunal to refer to "the High Court" any question of law arising out of an order under Section 33, and that the Appellate Tribunal shall within the time prescribed in the sub section draw up a statement of case and refer the question to "the High Court" Section 66(2) provides that if the Appellate Tribunal refuses to state a case on an application under Section 66(1) on the ground that no question of law arises, the assessee or the Commissioner, as the case maybe, may, within the time mentioned in the sub-section, apply to "the High Court", and "the High Court" if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and refer it. Section 66(8) provides that for the purposes of Section '66, "the High Court" means - (a) in relation to any State, the High Court of the State, and (b) in relations to the Union Territory of Delhi, the High Court of Delhi. The aforesaid provisions do not clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this judgment, the Division Bench has assigned yet another reason why the High Court of that State wherefrom the matter arises would only be competent to hear the reference. A decision of one High Court is a binding authority within its territorial jurisdiction; but it is not a binding precedent for another High Court or Tribunal outside its territorial jurisdiction. The Division Bench has held as under: "On account of the abovesaid doctrine of precedents and the rule of binding efficacy of the law laid down by the High Court within its territorial jurisdiction, the questions 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. Else it would result in serious anomalies. An assessee affected by an assessment order at Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it and suited to him and thus get rid of the law laid down to the contrary by the High Court of Bombay not suited to the assessee. This cannot be allowed." 12. Having made a careful comparative reading of the provisions of the Income-tax Act and the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held that the High Court within whose jurisdiction adjudicating authority functions would have territorial jurisdiction to entertain the matter. We have also expressed similar view in Central Excise Act Case No. 7 of 2000 disposed of on 30-10-2000 taking note of decision of the Apex Court in Stridewell Leather (P) Ltd. v. Bhankerpur Simbhaoli Beverages (P) Ltd. [AIR 1944 SC 158], while dealing with the scope of expression "the High Court" under Section 10F of the Companies Act, 1956 (in short, the Companies Act'). 3. We find no substance in the plea of learned counsel for petitioner that site of the Commissionerate or appellate authority determines the jurisdiction in view of what has been stated in the aforesaid decision." 27. The said decisions were followed by the Division Bench of the High Court of Bombay in Bombay Snuff (supra) to hold "6. The only difference in the legal position that existed at the time the above decision was rendered and the position that prevails today is that instead of the law envisaging a reference from the Tribunal to the High Court, the law now provides for an appeal from every order passed by the Appellate Tribunal. That difference doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a subsequent judgment of the Delhi High Court, 2006 (194) E.L.T. 264. In the said case, the High Court was considering as to whether in terms of Section 35(G)3 of the Customs Act the Delhi High Court could consider the appeal, filed by the assessee. The tribunal in para 6 noticed as under; 6. The only difference in the legal position that existed at the time the above decision was rendered and the position that prevails today is that instead of the law envisaging a reference from the tribunal to the High Court, the law now provides for an appeal from every order passed by the appellate tribunal. That difference does not however affect the reasoning underlying the view taken by this court in regard to its jurisdiction to entertain a petition under Section 35G. If a petition seeking reference under Section 35G was not maintainable in this court, there is no reason why an appeal under the said provision after its amendment can be said to be maintainable. On the reasoning adopted by this amendment can be said to be so maintainable. On the reasoning adopted by this court in Technological Institute of Textile's case (supra), an appeal under Section 35G must also be filed only in the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the subsequent appeal No. 44 of 1981 being against the decree on the merits of the claim, the withdrawal of the earlier appeal cannot, in any way, be a bar to the maintainability of the subsequent appeal. Mr. Nariman has in this connection referred to the decision of this Court in Vallabhdas v. Dr. Madan Lal and Org. in which this Court "equated the meaning of the words "subject matter" in Order 23 Rule 1 with the meaning of the words "cause of action" in Order 23 Rule 2. Relying on this decision, Mr. Nariman has argued that the "subject matter" of the appeal within the meaning of Order 23, Rule 1, must be considered in the light of the meaning of the words "cause of action" in Order 2, Rule 2; and it is his argument that as the "cause of action" in respect of the claim for instalment is entitely different from the "cause of action" in respect of decree which embraces within its fold the "subject matter" of the respective claims of the parties in the suit, the withdrawal of the earlier appeal No. 36 of 1981 against the instalments cannot in any way affect the maintain ability of the appeal No.44 of 1981 against the decree on the merits of the claim. Mr. Nariman has next contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed. [See Suresh Desai and Associates v. CIT. 1998 (230) ITR 912 at 915-917 and CCE v. M/s. Technological Institute of Textile in 76 (1998) DLT 862 (DB]. 39. Section 20(c) of the Code of Civil Procedure reads as under : "20. Other suits to be instituted where defendant reside or cause of action arises. Subject to the limitation aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction - (c) the cause of action, wholly, or in part, arises." 40. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) of CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action, as what is necessary to be proved, before the petitioner can obtain a decree, is material facts. The expression material facts is also known as integral facts. 41. Keeping ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
