TaxTMI 
TaxTMI 
2011 (8) TMI 540
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....cco, Scented Ellaichi, Scented Supari, etc. Though it has a registered office at Chandni Chowk, New Delhi, one of its manufacturing units is situated in Barotiwala, District - Solan, Himachal Pradesh. 3. Show cause notice dated 02.04.2003 was issued by the Office of the Deputy Commissioner, Central Excise Division, Shimla to the said unit of the appellant at Himachal Pradesh under Section 11A of the Central Excise Act, 1944 (hereinafter referred to as „the Act‟) proposing to raise demand of short paid National Calamity Contingent Duty („NCCD‟ for brevity) in the sum of Rs. 54,0004/- on additive mixture cleared during the period from 01.04.2002 to 16.10.2002 along with interest under Section 11AB of the Act. Penalty under section 25 of the Central Excise Rules, 2002 (hereinafter referred to as „the Rules‟) was also proposed. Similar show cause notice dated 19.06.2002 for another period, i.e., 01.10.2001 to 31.03.2002 and 01.04.2002 to 16.10.2002 was issued vide two separate orders in two appeals. The appellant replied to the said show cause notice claiming exemption from the payment of duties. However, the Deputy Commissioner passed orde....
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....d judgment in M/s. Sterling Agro Industries Ltd. (supra) dealt with the question of jurisdiction and was not concerned with statutory appeals. He argued that insofar as statutory appeals like the present one preferred under Section 35G of the Act are concerned, these would be covered by the specific provision and argued that reading these provisions would clearly demonstrate that the appeal was maintainable in the High Court of Delhi. Before we take note of this submission in detail, we would discuss the judgment of M/s. Sterling Agro Industries Ltd. (supra) in the principles for discerning the territorial jurisdiction, which are laid down therein, as the understanding of those principles stated in the said judgment would be necessary to understand and deal with the contentions of the learned counsel for the appellant. 8. In the case before the Five Judges Bench also, the admitted position was that the petitioner - industry was situate in District - Bhind, Malanpur in the State of Madhya Pradesh. The initial order was passed by the Assistant Commissioner of Customs ICD, Malanpur, District - Bhind (M.P.). The appellate order was passed by the Commissioner (Appeals) - I, Cu....
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....dering the best interests and convenience of the parties and witnesses." 31. The concept of forum conveniens fundamentally means that it is obligatory on the part of the court to see the convenience of all the parties before it. The convenience in its ambit and sweep would include the existence of more appropriate forum, expenses involved, the law relating to the lis, verification of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. Be it noted, the Apex Court has clearly stated in the cases of Kusum Ingots (supra), Mosaraf Hossain Khan (supra) and Ambica Industries (supra) about the applicability of the doctrine of forum conveniens while opining that arising of a part of cause of action would entitle the High Court to entertain the writ petition as maintainable. 32. The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 2....
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....d to the ground of mala fide alone. (f) While entertaining a writ petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinized by the High Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries (supra) and Adani Exports Ltd. (supra). (g) The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited (supra) "that since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens" is not correct. (h) Any decision of this Court contrary to the conclusions enumerated hereinabove stands overruled. 34. Ex consequenti, we answer the reference by partially overruling and clarifying the decision in New India Assurance Company Limited (supra) in the above terms. Matters be listed before the appropriate Division Bench for appropriate consideration." 11. It hardly needs any elaboration that once we apply the parameters laid down in the aforesaid judgment to the facts of this case, the obvious conclusion shall be that merely because the Tribunal being Appellate Authority de....
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.... section. " 14. Learned counsel, thus, submitted that since provisions of Section 100 of the Code of Civil Procedure were applicable to such appeals, it was necessary to fall back on that provision to ascertain whether High Court of Delhi will have jurisdiction or not. For this purpose, he emphasized upon the provisions of sub-Section (1) of Section 100, which makes the following reading: "Section 100. Second Appeal. - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law." 15. His submission that as per the said Section, appeal can lie to the High Court from the order passed in appeal by "any court subordinate to the High Court". According to him, since the Tribunal was subordinate to this Court and had superintending jurisdiction over the said Tribunal under Article 227 of the Constitution of India, this Court was competent to hear the present appeals. To buttress his submission, the learned c....
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....uch a case, if the jurisdiction is confirmed merely because the Tribunal decided the appeal, it would lead to disastrous result and therefore, doctrine of cause of action would not be invoked in a case of this nature. It would be of interest to note that the argument of the appellant in the said appeal, predicated on the Constitution Bench judgment of the Supreme Court in the case of Nasiruddin Vs. S.T.A. Tribunal [AIR 1976 SC 331] was that the decision of the Tribunal provides cause of action and therefore, when decision was rendered by the Tribunal in Delhi, High Court of Delhi will have the jurisdiction holding that in case of appeal under Section 35G of the Act, this plea of cause of action would not be determinative, the Court explained the same in the following terms: "12. The said decision proceeded on the basis that part of the cause of action may arise at the forum where the appellate order or the revisional order is sourced. If, thus, a cause of action arises within one or the other High Court, the petitioner shall be the dominus litis. Indisputably, if this set of reasoning is to be accepted, the impugned judgment as also the decision rendered in Bombay Snuff (....
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....rds: "17. There cannot be any doubt whatsoever that in terms of Article 227 of the Constitution of India as also Clause (2) of Article 226 thereof, the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the Subordinate Courts within its territorial jurisdiction or if any cause of action has arisen therewithin but the same tests cannot be applied when the appellate court exercises a jurisdiction over Tribunal situated in more than one State. In such a situation, in our opinion, the High Court situated in the State where the first court is located should be considered to be the appropriate appellate authority. Code of Civil Procedure did not contemplate such a situation. It provides for jurisdiction of each court. Even a District Judge must exercise its jurisdiction only within the territorial limits of a State. It is inconceivable under the Code of Civil Procedure that the jurisdiction of the District Court would be exercisable beyond the territorial jurisdiction of the District, save and except in such matters where the law specifically provides therefor. 18. The submission of Mr.....
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.... held to be the basis for determination of the jurisdiction of the High Court. In the said decisions, however, the contentions which have been raised before us did not arise for consideration. 38. We have noticed hereinbefore that if the decision of the High Court in the aforementioned question is taken to its logical conclusion, the same would lead to a great anomaly. It would also give rise to the problem of forum shopping. We may notice some examples to show that the determination of the appellate forum based upon the situs of the Tribunal would lead to an anomalous result. For example, 'an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it which may be contrary to judgments of the High Court of Bombay. This cannot 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]." 20. This judgment, thus, amply demonstrates that the view taken in M/s. Sterling Agro Industries Ltd. (supra), though in the context of Article 226 of the Constitution of India, can be applied to the stat....
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....as relied heavily on the pronouncements in Canon Steels P. Ltd. -vs- Commr. of Customs (Export Promotion), 2007 (218) ELT 161(SC). Significantly, Ambica Industries was not cited or considered even though it was an earlier decision of a Coordinate Bench. Even more significant is the fact that Canon is irreconcilable with the view of the same learned Judge in Commr. of Central Excise, Delhi-III -vs- Enkay HWS India Ltd., 2002(139) ELT 21(Del) where it had been held that the site of the Commissionerate or Appellate Authority does not determine jurisdiction. It appears evident to us that what prevailed on his Lordship, Dr. Arijit Pasayat in Canon, was the fact that a writ petition had been filed and withdrawn in the High Court of Delhi, to be later filed in the High Court of Punjab and Haryana which also was found not to have jurisdiction. In order to effect substantial justice, their Lordships directed that the writ petition should be heard in New Delhi. What is interesting to note is the fact that the question that the jurisdiction would lie before the High Court of Judicature at Bombay because the cause of action and primary adjudication had taken place there, was not even broached ....