Full Judgment Text
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CASE NO.:
Appeal (civil) 5153 of 2007
PETITIONER:
M/s Canon Steels P. Ltd
RESPONDENT:
Commissioner of Customs
DATE OF JUDGMENT: 12/11/2007
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 5153 OF 2007
Arising out of SLP (Civil) No.7645 of 2007
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the orders passed by the
Punjab & Haryana High Court dismissing the Customs Act
Appeal No.4/2004, filed under Section 130 of the Customs
Act, 1962 (in short the ’Act’) dated 8th May, 2006, and the
order passed in review application dated 12.10.2006. The High
Court held that it had no jurisdiction to deal with the matter
as the original order was passed by Adjudicating authority at
Mumbai and the appellate order was passed at Delhi by the
Customs, Excise and Service Tax Appellate Tribunal (in short
’CESTAT’). Reference was made to the decision of this Court
in Kusum Ingots & Alloys Ltd. V. Union of India and Anr.
(2004 (6) SCC 254).
3. In support of the appeal, learned counsel for the
appellant submitted that the judgment in Kusum Ingots
(supra) is in favour of the appellant and on misreading of the
decision the appeal has been dismissed. Learned Additional
Solicitor General, on the other hand, submitted that before
moving the Punjab and Haryana High Court, the Delhi High
Court was moved, and at the request of the appellant, the
High Court permitted to withdraw the appeal (wrongly stated
as writ petition).
4. The factual position is not in dispute. The adjudication
order under the Act was passed by the Commissioner of
Customs (EP Mumbai) and the appeal against that order was
adjudicated by CESTAT. Against the order of CESTAT,
Customs Appeal No.6/04 was filed before the Delhi High
Court. It is submitted by learned counsel for the appellant that
prima facie, the High Court was of the view that the appeal
was not maintainable before it and, therefore, the appellant
withdrew the said appeal to file it before the appropriate High
Court. Since the cause of action arose at Chandigarh it was
submitted that the Punjab and Haryana High Court has
jurisdiction.
5. At this juncture, it would be appropriate to take note of
what has been stated by this Court in Kusum Ingots (supra).
6. The Court must have the requisite territorial jurisdiction.
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An order passed on a writ petition questioning the
constitutionality of a Parliamentary Act, whether interim or
final keeping in view the provisions contained in clause (2) of
Article 226 of the Constitution of India, will have effect
throughout the territory of India subject of course to the
applicability of the Act.
7. Learned counsel for the appellant in support of his
argument would contend that the situs of framing law or rule
would give jurisdiction to the Delhi High Court and in support
of the said contention relied upon the decisions of this Court
in Nasiruddin v. STAT (1975 (2) SCC 671), and U.P. Rashtriya
Chini Mill Adhikari Parishad v. State of U.P. (1995 (4) SCC 738).
So far as the decision of this Court in Nasiruddin’s case
(supra) is concerned, it is not an authority for the proposition
that the situs of legislature of a State or the authority in power
to make subordinate legislation or issue a notification would
confer power or jurisdiction on the High Court or a Bench of
the High Court to entertain a petition under Article 226 of the
Constitution. In fact, this Court while construing the
provisions of the United Provinces High Courts
(Amalgamation) Order, 1948 stated the law thus: (SCC p.
683, para 37)
"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 passed
at Lucknow then Lucknow would have
jurisdiction though the original order was
passed at a place outside the areas in Oudh. It
may be that the original order was in favour of
the person applying for a writ. In such case an
adverse appellate order might be the cause of
action. The expression ’cause of action’ is well
known. If the cause of action arises wholly or
in part at a place within the specified Oudh
areas, the Lucknow Bench will have
jurisdiction. If the cause of action arises wholly
within the specified Oudh areas, it is
indisputable that the Lucknow Bench would
have exclusive jurisdiction in such a matter. If
the cause of action arises in part within the
specified areas in Oudh it would be open to the
litigant who is the dominus litis to have his
forum conveniens. The litigant has the right to
go to a court where part of his cause of action
arises. In such cases, it is incorrect 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.
Similarly, if the cause of action can be said to
have arisen part within specified areas in
Oudh and part outside the specified Oudh
areas, the litigant will have the choice to
institute proceedings either at Allahabad or
Lucknow. The court will find out in each case
whether the jurisdiction of the court is rightly
attracted by the alleged cause of action."
8. The said decision is an authority for the proposition that
the place from where an appellate order or a revisional order is
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passed may give rise to a part of cause of action although the
original order was at a place outside the said area. When a
part of the cause of action arises within one or the other High
Court, it will be for the petitioner to choose his forum.
9. 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
refuse to exercise its discretionary jurisdiction by invoking the
doctrine of forum conveniens. [See Bhagat Singh Bugga v.
Dewan Jagbir Sawhney (AIR 1941 Cal 670), Madanlal Jalan v.
Madanlal (AIR 1949 Cal 495), Bharat Coking Coal Ltd. v. Jharia
Talkies & Cold Storage (P) Ltd. (1997 CWN 122) , S.S. Jain &
Co. v. Union of India (1994 (1) CHN 445) and New Horizons Ltd.
v. Union of India (AIR 1994 Del 126.]
10. The appellate order in this case was issued from CESTAT
office at New Delhi. In that sense the Delhi High Court has
jurisdiction to deal with the matter in terms of what has been
stated in paragraph 25 of Kusum Ingot’s case (supra).
11. The Punjab & Haryana High Court was justified in its
view as the original adjudication order and the appellate order
were not issued by any authority within its territorial
jurisdiction. But no person should be left without a remedy,
therefore, even though the Customs Case No.6/04 was
withdrawn by the assessee, we direct the restoration of the
said as undisputably, the Delhi High Court has jurisdiction to
deal with the matter.
12. Customs Case No.6/04 in the Delhi High Court needless
to say shall be dealt with on merits.
13. We make it clear that we have not expressed any opinion
on the merits of the appeal.
14. The appeal is accordingly disposed of without any order
as to costs.