TMI Blog2004 (9) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... uch, the learned Judge refused to pass any order on the injunction petition filed by the appellant and rejected the same with costs. 2. The appeal is against that judgment. 3. The learned Counsel appearing in support of the appeal argued that the learned trial Judge erred in law while construing the provisions of Section 9 of the Code. The learned Counsel submitted that unless there is any specific statutory bar to the jurisdiction of the Civil Court, the Court should have entertained the civil suit. It was also urged that, in this case, there is no such statutory bar. It was also argued that the implied bar of jurisdiction cannot be assumed rightly unless such an implication is apparent or obvious. In support of such contentions, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 within 30 days from the date of receipt of the said order by the appellant. A penalty to the tune of Rs. 9/- lakhs was also imposed under Rule 173Q(1) of the said Rules. The Commissioner held that there is no case for passing any order of confiscation. Against the said order, an appeal was preferred by the appellant and the said appeal was decided by the Customs, Excise and Gold (Control) Appellate Tribunal, Eastern Bench, Kolkata on August 22, 2002. By the order under appeal, the Appellate Authority dismissed the appeal as also the appeal, which was filed by the Revenue against the order of the Commissioner. 8. This order is sought to be challenged by the appellant by filing a suit in the City Civil Court at Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "By Sections 188 and 191 a precise and self-contained code of appeal is provided in regard to obligations which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the executive Government. It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the Civil Courts." 13. In view of the aforesaid ratio in Mask Co. and having regard to the provisions contained under the Central Excise Act, 1944 in which detailed machinery has been provided for redressal of the grievances of the appellant, this Court finds that there is no error in the order passed by the learned City Civil Court Judge. In fact, the learned Judge of the City Civil Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner can make an appropriate order and the order, thus, made by him, is final subject to the order of the State Government. Construing these provisions, it was argued that the jurisdiction of the Civil Court was clearly barred. In that context, the Court came to the conclusion that the bar created under the relevant provision by excluding the jurisdiction of the Civil Court, cannot operate in cases, where the plea goes to the root of the matter and where it would show that in view of the pleas taken the order is a nullity. The statutory provision in the U.P. Act and the Central Excise and Salt Act are not at all identical. In the U.P. Act, a suit could be filed with the permission of the District Magistrate, so there is no bar on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Code is concerned, Justice Jeevan Reddy, while delivering the majority judgment, held that where there is a complete mechanism for redressal in the concerned statute, there is a bar to Civil Court's jurisdiction by implication. The learned Judge was pleased to observe as follows :- "Because the Act creates new rights and liabilities and also provides the machinery for assessment and adjudication of those rights and liabilities, a bar to the jurisdiction to Civil Court arises by necessary implication." (Para 23 P 577 of the Report). 17. In the majority judgment, delivered by Justice B. P. Jeevan Reddy on His Lordship's behalf and on behalf of other four learned Judges, it was clearly stated in paragraph 108 (x) at page 634-63 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Counsel relied on paragraph 69 of the said Judgment in order to contend that the question of limitation involves the question of jurisdiction and any finding of fact on a question of jurisdiction is a jurisdictional fact and as such, a jurisdictional question is to be determined having regard to both fact and law and the learned Judges of the Supreme Court held that the CEGAT committed a manifest error in not determining the said question. 21. Accepting those principles as stated in the Supreme Court judgment, this Court does not find how the said judgment has any relevance to the points with which this Court is concerned in the facts of the present case. In the paragraph under reply, the Supreme Court was examining the question, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
