AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2007 (5) TMI 21
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....), 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. Had the said provision been taken into consideration for determination of the issue, it was possible to hold that its decision in Bombay Snuff (supra) had been rendered per incurium. Referring to the development of law governing the field, by reason of the amendment carr....
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....e 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 it to the High Court: Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein before specified, allow it to be presented within a further period not exceeding t....
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....ays 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 crease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third, the Chief Justice has power under the second proviso to paragraph 14 of the Order to direct in his discretion that any ....
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.... 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 at Bombay, may invoke the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay. 14. Furthermore, when an appeal is provided under a statute,....
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....t 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 thereto. 20. The situs of a Tribunal may vary from time to time. It could be Delhi or some other place. Whether its jurisdiction would be extending to 3 States or more or less would depend upon the Executive order which may be issued. Determination of the jurisdiction of a High Court on the touchstone of Section....
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....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 indicate to which particular High Court the Appellate Tribunal has to make a reference under Section 66(1) or which High Court can call for a reference under Section 66(2), in a case where a Bench of the Appellate Tribunal has jurisdiction over more than one State." 24. Referring to a judgment of Madras High Court, name....
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....ibunal 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 Customs Act, as also the relevant rules and orders of the Tribunal we are unhesitatingly of the opinion that the principles laid down in the abovesaid three Division Bench decisions of Delhi High Court can be applied and do apply to the facts and circumstances of the present case. 13. The present case arises out of the State of B....
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....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 does not however affect the reasoning under lying 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 sa....
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....egal 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 High Court who has jurisdiction over the authority from whose order the proceedings have originated. The fact that the main seat of the CESTAT is situated in Delhi or that the appeal was heard and decided at Delhi would not mean that all appeals arising from cases so decided regardless from which State the case has origi....
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....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 contended that the provisions of Order 2, Rule 2 of the Civil Procedure Code do not in any way affect the maintainability and the merits of the present appeal No. 44 of 1981. He has submitted that the said provisions have no application to an appeal and in any event, the cause of action and the subject matter of the present appeal are en....