2013 (11) TMI 263 - HC - Customs

Court affirms jurisdiction in Customs Commissioner's appeal, dismisses review application. President's transfer lacked authority.

AREVA T & D INDIA LTD. Versus COMMISSIONER OF CUSTOMS (EXPORTS), MUMBAI

The Court held that it had jurisdiction to entertain the appeal filed by the Commissioner of Customs challenging the order passed by the South Zonal Bench ... Transfer of Appeal - Whether the Appellate Tribunal was vested with the power to transfer a case from one Bench situated in a particular State to another Bench functioning in another state invoking Section 129C(6) of the Customs Act – Held that:- 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. The Appellate Tribunal is a Court within the meaning of Section 129C(7) of the Customs Act - The proceeding before the Tribunal is a judicial proceeding - The President is the head of the Appellate Tribunal - it is not proper on the part of the Tribunal or its President to entertain correspondence with litigants directly with regard to matters pending before it - In fact, Section 129A (7) of the Customs Act provides that any application filed before the Appellate Tribunal shall be accompanied by a fee - The President of the Appellate Tribunal has no jurisdiction to transfer the matter from the permanent Bench at Mumbai to a Bench at Chennai by way of an administrative order. Jurisdiction to entertain the appeal – against the order passed by CESTAT, Chennai Bench with regard to a matter originated from the adjudicating authority located at Mumbai - Held that:- On the ground of difficulties in conducting the case at Mumbai, the petitioner has given a request to the President to transfer the case - the transfer was without notice to the Customs Department - When the CESTAT passed an order allowing the appeal, the petitioner wanted further proceedings to be conducted only in Mumbai, presumably on the ground that the judgment rendered by the Bombay High Court in a similar matter, would enable them to get the appeal dismissed – there was no merit in the contentions raised by the petitioner with regard to the objection to the territorial jurisdiction of the Court to hear the appeal - The Court has jurisdiction to entertain the appeal filed by the Commissioner of Customs challenging the order passed by the South Zonal Bench of CESTAT at Chennai – Jurisdictional issue decided against Petitioner. Issues Involved:1. Jurisdiction to entertain the appeal.2. Validity of the transfer order by the President of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT).Issue-Wise Detailed Analysis:1. Jurisdiction to Entertain the Appeal:The petitioner argued that the appeal should have been filed before the Mumbai High Court as the adjudicating authority, the Commissioner of Customs (Export Promotion), was situated in Mumbai. The petitioner contended that the jurisdictional issue is a legal matter that goes to the root of the case, and if the court lacks jurisdiction, any order passed would be a nullity. The petitioner sought a review of the judgment on the grounds of jurisdiction, arguing that the appeal against the final order passed by CESTAT, Chennai should lie before the Mumbai High Court under Section 130 of the Customs Act, 1962.The respondent countered that this Court has jurisdiction to entertain the appeal filed against the order passed by CESTAT, Chennai. The respondent argued that the Chennai Bench was given jurisdiction due to the transfer order by the President of the Tribunal, making this Court the jurisdictional High Court competent to consider the challenge to the order.The Court noted that the scope of review jurisdiction is limited but entertained the review petition due to the substantial question regarding jurisdiction. The Court referred to the judgment in Ambica Industries v. Commissioner of Central Excise, which held that the jurisdictional High Court alone has the authority to entertain appeals against CESTAT orders, notwithstanding the Tribunal's seat. However, the Court distinguished this case from Ambica Industries, noting that the transfer in this case was due to an administrative order by the President of the Tribunal, not the Tribunal's seat.The Court concluded that the legality and correctness of the order passed by CESTAT, Chennai cannot be tested with reference to the law laid down by the Bombay High Court. The jurisdiction on account of transfer must be distinguished from jurisdiction based on the Tribunal's situs. The order passed by the transferee Bench must be challenged before the jurisdictional High Court, which in this case is this Court. Therefore, the Court held that it has jurisdiction to entertain the appeal filed by the Commissioner of Customs challenging the order passed by the South Zonal Bench of CESTAT at Chennai.2. Validity of the Transfer Order by the President of CESTAT:The petitioner requested the transfer of their appeal from the Mumbai Bench to the Chennai Bench of CESTAT, citing difficulties in attending hearings in Mumbai. The President of CESTAT transferred the case from Mumbai to Chennai through an administrative order without notice to the Customs Department. The petitioner argued that the President has the jurisdiction under Section 129C(6) of the Customs Act to pass such administrative orders for transferring pending matters.The Court examined whether the President of CESTAT had the power to transfer a case from one Bench in one state to another Bench in a different state under Section 129C(6) of the Customs Act. Section 129C(6) allows the Appellate Tribunal to regulate its own procedure, including the places where the Benches shall hold their sittings. However, the Court found that this provision does not expressly confer power on the Appellate Tribunal to transfer matters on the administrative side. The Tribunal, being deemed a Civil Court, must transfer proceedings through judicial orders, not administrative ones.The Court observed that the transfer order was made unilaterally without the knowledge of the other party, which could lead to forum shopping and surprise the opposite party. The Court also noted that the petitioner circumvented the statutory requirement of paying a fee for transfer applications by sending a direct request to the President. The Court concluded that the President of CESTAT had no jurisdiction to transfer the matter from the Mumbai Bench to the Chennai Bench through an administrative order.Disposition:The Court dismissed the review application, holding that it has jurisdiction to entertain the appeal filed by the Commissioner of Customs against the order passed by the South Zonal Bench of CESTAT at Chennai. The review application was dismissed with no costs.