TaxTMI 
TaxTMI 
2024 (9) TMI 459
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....2837/2021, WP/2910/2021 and WP/5120/2022. For the Respondents: Ms. Sangeeta Yadav in WP/3128/2024. For the Respondents in WP/5120/2022: Mr. Jitendra B. Mishra a/w Mr. Dhananjay B. Deshmukh and Mr. Rupesh Dubey. For the Respondents: Mr. Jitendra B. Mishra a/w. Ms. Sangeeta Yadav and Mr. Rupesh Dubey in WP/2837/2021 and WP/2910/2021. For the Respondents: Mr. Karan Adik a/w. Mr. Satyaprakash Sharma in WPL/3128/2024. JUDGMENT (PER K.R. SHRIRAM, J.) : 1. In all these six petitions listed today respondents raised a preliminary objection in relation to the maintainability of these petitions before Bench of this Court. The preliminary objection is that petitioners are required to file writ petitions before the High Courts within whose jurisdiction the original adjudication orders were passed. Having heard the counsels, we shall demonstrate that the preliminary objection is not sustainable. We, therefore, proceed to deal with the limited question of jurisdiction. We are, at present, not concerned with the merits of the disputes between the parties for the matter has not yet been heard by us on merits. It is, therefore, not necessary to set out the facts in detail, except to the exte....
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....o those details to decide the issue of jurisdiction. 6. In matters relating to excise duty and service tax, most appeals against orders of the Departmental Authorities lie before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) under Section 35B of the Excise Act. The Proviso to sub-section (1) of Section 35B, however, carves out certain exceptions. It says orders relating to the subjects specified in the proviso to sub-section (1) of Section 35B would not be appealable to the CESTAT under Section 35B. Those orders would be amenable to revision under Section 35EE by the Central Government. One such order would be relating to matters of rebate. Those will not be appealable to the CESTAT but would go before the Central Government under Section 35EE. 7. Rule 10 of the Central Excise (Appeals) Rules, 2001 provides that all revisions under Section 35EE would lie before jurisdictional Principal Commissioner (Revisionary Authority). The jurisdiction of Revisionary Authority is specified as follows : Sr. No. Office Jurisdiction to hear Revision Applications against Commissioner (Appeals) Order (State-wise and Union-Territory wise) 1 Principal Commissioner (RA) and ex-....
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....to say that the litigant chooses any particular Court. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court. Therefore, if the cause of action can be said to have arisen partly within one area and partly outside the said area, the litigant will have the choice to file writ petition under Article 226 of the Constitution of India before either of the two High Courts. (iii) The order of the Revisionary Authority constitutes a part of cause of action. A writ petition would be maintainable in the High Court within whose jurisdiction it is situated which will be this Court having regard to the fact that the order of the Revisionary Authority is also required to be set aside and as the order of the original authority merges with that of the order of Revisionary Authority. (iv) It is settled position that once an appeal is decided by an Appellate Authority, the order of the original authority gets merged with the order of the Appellate Authority by principles of doctrine of merger. In effect, the order of the original authority no longer remains, and it is the order of the Appellate Authority wh....
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....s Court since the orders of the adjudicating authorities have merged into the impugned orders of the Revisionary Authority who is located in Mumbai. 11. Mr. Mishra submitted as under : (i) It cannot be stated that substantial or material or integral facts construing a cause of action has arisen within jurisdiction of this Court. At the most it can be stated only a slender part of cause of action has arisen within the jurisdiction of this Court as against major part of cause of action arising outside the jurisdiction of this Court. Therefore, this Court may not entertain the petitions on the ground of forum conveniens. (ii) The contesting respondents are all situated either in Bangalore or Goa or Chennai or Nagpur whereas, the Revisionary Authority is only a proforma party in the facts of this case. Even in the absence of respondent no. 2, this petition could have been filed. Respondent no. 2 may be proper party but not necessary party. Since petitioners and the contesting respondents are based outside, the High Courts within whose jurisdiction those parties are situated would be most appropriate Court to entertain these petitions. In State of Goa v/s. Summit Online Trade Solut....
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....Court held that the Court will find out in each case whether the jurisdiction of the Court is rightly attracted by the alleged cause of action. East India Commercial Co. Ltd. (Supra), relied upon by petitioner, is not applicable in the facts and circumstances of the case and that judgment was passed prior to the insertion of Article 226 (2) of the Constitution of India. (viii) Therefore, in the facts and circumstances of each of the petitions it will be either Bangalore or Goa or Chennai or Nagpur that would be most convenient forum and hence, this Court may not entertain the petitions even though the situs of Revisionary Authority, who has passed the impugned order, is within territorial limits of this Court. 12. Mr. Adik submitted as under : (i) At the outset adopted the submissions of Mr. Mishra. (ii) The Central Government in exercise of powers conferred under Section 37 of the Excise Act keeps amending the rules under the Central Excise (Appeals) Rules, 2001. The Central Government by such amendments keeps altering the jurisdiction to be exercised by the Principal Commissioner (Revisionary Authority) from time to time. Therefore, the situs of the Revisionary Authority c....
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....Oudh" in the first proviso to paragraph 14 of the order was answered by the High Court that with regard to applications under Article 226 the same will be "a case arising within the areas in oudh, only if the right of the petitioner in such an application arose first at a place within an area in oudh. The implication according to the High Court is that if the right of the petitioner arose first at any place outside any area in oudh and if the subsequent orders either in the revisional or appellate stage were passed by an authority within an area in oudh then in such cases the Lucknow Bench would not have any jurisdiction. The factor which weighed heavily with the High Court is that in most cases where an appeal or revision would lie to the State Government, the impugned order would be made at Lucknow and on that view practically all writ petitions would arise at Lucknow. 37. The conclusion as well as the reasoning of the High Court is incorrect. It is unsound because the expression "cause of action" in an application under Article 226 would be as the expression is understood and if the cause of action arose because of the appellate order or the revisional order which came to be p....
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....ad of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the order he directed to be heard at Allahabad. Fourth, the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some ....
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....use of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words as 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. 28. xxxxxxxxxxxxxxx 29. In view of clause 2 of Article 226 of the Constitution of India now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh (supra) has, thus, no application. 30. We must, however, remind ourselves that even if a small part of 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 merit. In appropriate cases, the Court may re....
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....nce between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first tori kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a wr....
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....ourt where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dealing. We have therefore no hesitation in holding consistently with the view taken by this Court in Mudaliar's case as well as in Messrs. Amritlal Bhogilal's case that the order of the original authority must be held to have merged in the order of the appellate authority in a case like the present and it is only the order of the appellate authority which is operative after the appeal is disposed of. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it would not be open to it to issue a writ to the original authority which is within its jurisdiction so long as it cannot issue a writ to the appellate authority. It is not in dispute in this case that no writ could be issued to the appellate authority and in the circumstances the High Court could issue no writ even to the original authority. We therefore allow the appeal, set aside the order of the High Court and dismiss the writ petition with costs. (emphasis supplied) Therefore, the Court held that t....
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....f the Appellate Authority constitutes a part of the cause of action and that a writ petition against the appellate order was maintainable before the High Court within whose territorial jurisdiction the Appellate Authority was situated. 21. In light of the above, the present petitions are maintainable before the Principal Seat of this High Court since the orders of the adjudicating authorities have merged into the impugned orders of the Revisionary Authority who is located in Mumbai. 22. Dealing with the case of respondents, in our view, the stand of Mr. Mishra and Mr. Adik on behalf of respondents in relation to forum conveniens is not applicable to the facts and circumstances of the present matter. 23. Relying on Kusum Ingots & Alloys Ltd. (Supra) and the decision of the Five Judge Bench of the Delhi High Court in Sterling Agro Industries Ltd. (Supra) it was submitted by respondents that petitioners are unsuited by the principle of forum conveniens. This was made relying on paragraph 30 of Kusum Ingots & Alloys Ltd. (Supra) that is quoted in paragraph 16 above. In our view that has no application to the facts and circumstances of the matter at hand. In the present case, it is n....
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....shall now deal with the judgments cited by respondents : (a) Summit Online Trade Solutions Pvt. Ltd. (Supra) : This was a writ petition filed before the Sikkim High Court challenging a notification issued by the Goa State Tax Department under Goa GST Act. The High Court dismissed the writ petition on the ground that no case was made out as to how part of cause of action arose within the territorial limits of the High Court of Sikkim or any pleading as to how any right has been affected within the territory of Sikkim. The Hon'ble Supreme Court upheld the dismissal of the writ petition by the Sikkim High Court. While upholding, the Hon'ble Supreme Court relied on the concept of forum conveniens as held by the Hon'ble Supreme Court in Kusum Ingots & Alloys Ltd. (Supra). (b) Kohli Roadlines, Nagpur (Supra) : This is a matter pertaining to a writ petition challenging a tender floated by the Maharashtra State Power Generation Company before the Nagpur Bench of this Court. The High Court rejected the writ petition for absence of cause of action or even part thereof arising at the Nagpur Bench of this Court. (c) Bhavendra Hashmukhlal Patadia (Supra) : This is a matter involving....