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2015 (12) TMI 1212 - GUJARAT HIGH COURT

2015 (12) TMI 1212 - GUJARAT HIGH COURT - TMI - Jurisdiction of Court - Bombay High Court or Gujarat High Court - Held that:- mere fact that the situs of the adjudicating authority is situated at Vapi within the territorial jurisdiction of this High Court or that part of the investigation has been carried out at Vapi would not be a determinative factor for compelling this court to decide the matter on merits. As noted earlier, against the order passed by the adjudicating authority, appeal lies t .....

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jurisdictional High Court insofar as the adjudicating authority, the lower appellate authority, as well as the Tribunal in relation to matters arising from the Union Territory of Dadra and Nagar Haveli, it is the decisions of that High Court which are binding on those authorities. Under the circumstances, it is the Bombay High Court before which the action can be most appropriately brought - Decided against Appellant. - Special Civil Application No. 12513 of 2015 - Dated:- 30-10-2015 - Harsha De .....

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J. Oza, learned Senior Standing Counsel for the respondent, raised a preliminary objection to the very maintainability of the petition on the ground of lack of territorial jurisdiction on the part of this court to entertain the petition. It was submitted that the subject matter of challenge in the present petition is an order-in-original passed by the adjudicating authority against which, appeal lies before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the T .....

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as the territorial jurisdiction to entertain such petition and not this High Court. It was submitted that no cause of action has arisen within the territorial jurisdiction of this High Court and that the situs of the authority that passed the order would not determine the territorial jurisdiction of the court. 2.1 In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Ambica Industries v. Commissioner of Central Excise, 2007 (213) .....

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Court was taken to its logical conclusion, the same would lead to a great anomaly. It would also give rise to the problem of forum shopping. It was submitted that under the circumstances, this court does not have the territorial jurisdiction to entertain the petition and that the petition deserves to be dismissed on this ground alone. 3. In response to the preliminary objection raised by the learned counsel for the respondent, Mr. Prakash Shah, learned advocate for the petitioners submitted that .....

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diction of this court; and hence, this court has the jurisdiction to entertain and decide the present petition. 3.1 In support of his submissions, the learned counsel placed strong reliance upon the decision of the Supreme Court in the case of Kusum Ingots & Alloys Ltd. v. Union of India, 2004 (168) ELT 3 (SC), wherein it has been held that when an order is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of the cause of actio .....

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aside and as the order of the original authority merges with that of the appellate authority. 3.2 On the question of there being an efficacious remedy by way of appeal under the provisions of the Central Excise Act being available, the learned counsel invited the attention of the court to the contents of the impugned order to point out that the order has travelled beyond the scope of the show cause notice, to submit that the petitioner is wholly justified in invoking the writ jurisdiction of th .....

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therefore, the impugned order also suffers from the breach of principles of natural justice. It was further submitted that the show cause notice was issued on 19.12.2013, which is clearly beyond a period of five years and hence, the demand itself is time barred and consequently there is no jurisdiction to raise such a demand. It was submitted that the present case, therefore, clearly falls within the eventualities set out by the Supreme Court in a catena of decisions wherein the bar of alternati .....

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r of Customs, Mumbai v. Toyo Engineering India Limited, (2006) 201 ELT 513 (SC), for the proposition that when the grounds did not find mention in the show cause notice, the Department cannot travel beyond the show cause notice. 4. Since the question of lack of territorial jurisdiction has been raised by way of a preliminary contention, it would be necessary to first address the same. The facts are not in dispute. The dispute arises in relation to the alleged illegalities stated to have been com .....

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s held by the Supreme Court in Ambica Industries v. Commissioner of Central Excise (supra), determination of the jurisdiction of a High Court on the touchstone of sections 35G and 35H of the Act should be considered only on the basis of statutory provisions and not anything else. However, keeping in view of the expression cause of action used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction thereof accrues within the jurisdiction of the court, the .....

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nstituted at another, a writ petition would be maintainable at both the places. In other words, as the order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority. 5. Thus, in the light of the above decis .....

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Court in the case of Kusum Ingots & Alloys Ltd. v. Union of India (supra) has also held that even if a small part of the cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merits. In appropriate cases, the court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. The expression forum conveniens as de .....

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