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2014 (3) TMI 676 - HC - CustomsMaintainability of appeal - Jurisdiction of High Court - Determination of situs of the High Court in which appeals would lie under Section 35G(1) of the Central Excise Act - Section 35G(1) of the Central Excise Act - Held that - The appellant filed Miscellaneous Application before the Tribunal to restore the appeal and to modify the pre-deposit order. This came to be rejected by the Tribunal by order dated 20.09.2011. Nevertheless there was an observations by the Tribunal that the Commissioner should not decline to accept the sum of 25, 00, 000/- the appellant pays the sum in one lump sum within one month. The appellant complied with the order and the said amount has been deposited on 22.10.2001. The Tribunal disposed of the appeal by order dated 19.12.2005. Therefore the appellant having already agitated the matter before the High Court of Andhra Pradesh as against the interim order of the Tribunal and knowing fully well that the adjudicating authority as well as appellate authority are situated within the jurisdiction of the High Court of Andhra Pradesh the appellant was carrying on business at Visakhapatnam choose to file this appeal before this Court. That apart even earlier the appellant moved the High Court of Andhra Pradesh for release of the goods in which direction was issued to the Andhra Pradesh State Excise authorities to deliver the siezed goods to the Customs Authorities of Andhra Pradesh to be kept in the wareshouses. The conduct of the appellant in filing the appeal before this Court is not appreciable and it is a definite case of forum shopping . This is one more reason for us to hold that the appeal cannot be entertained by this Court. Appellant submitted that the appeal having been admitted in 2006 the appellant should not be compelled to approach the High Court of Andhra Pradesh and the appeal should be heard on merits. The submission deserves to be rejected since this is not a case where the appellant has approached this Court by way of writ petition under Article 226 without availing the statutory appellate remedy and in certain cases the Hon ble Supreme Court has held that if the writ petitions have been entertained and pending for a long period of time the petitioner should not be relegated to the statutory Appellate Authorities. Such principle cannot be applied to the case on hand as being a statutory appeal under Section 130 of the Act and the territorial jurisdiction of this Court cannot extend over the authorities functioning under the Customs Act in the State of Andhra Pradesh - The learned counsel appearing for the appellant requested this Court to grant liberty to the appellant to approach the High Court of Andhra Pradesh. No such liberty can be granted to the appellant except to observe that the appeal before this Court was presented on 10.04.2006 within the period of limitation and admitted on 13.04.2006 - Decided against assessee.
Issues Involved:
1. Examination of Customs Department officers. 2. Presumption under Section 114(c) of the Evidence Act. 3. Burden of proof on the appellant. 4. Acceptance of shipping bills signed by the Master of the vessel. 5. Acceptance of the letter dated 28.02.1996 from the Flag Officer, Commander-in-Chief. 6. Conclusion on forged signatures of Naval Officers. 7. Rejection of retracted statements by employees. 8. Assumption of truth in letters from Naval Authorities. 9. Presumption of genuineness of letters from Naval Authorities. 10. Finding on non-supply of goods. 11. Adverse decision against the appellant for non-supply of goods. Detailed Analysis: 1. Examination of Customs Department Officers: The Tribunal concluded that the goods were not delivered to the Naval Authority despite no examination of the Customs Officers who signed the Shipping Bills. The appellant argued that without proving collusion, the Tribunal's conclusion was unjustified. 2. Presumption under Section 114(c) of the Evidence Act: The Tribunal presumed the Naval Authorities' report as final and true without examining any Naval Authorities or proving the corresponding letters. The appellant contested this presumption, arguing it was not substantiated by evidence. 3. Burden of Proof on the Appellant: The Tribunal stated that the appellant did not discharge the burden of proof by not providing rebuttal evidence, despite the appellant producing original Shipping Bills. The appellant maintained that the original documents should have sufficed to prove their case. 4. Acceptance of Shipping Bills Signed by the Master of the Vessel: The Tribunal did not accept the Shipping Bills endorsed by the Master of the vessel, who is the Competent Authority for certifying receipt of goods. The appellant argued that these endorsements should have been considered valid evidence of delivery. 5. Acceptance of the Letter Dated 28.02.1996 from the Flag Officer, Commander-in-Chief: The Tribunal accepted the letter without examining its author or the person in charge of the section. The appellant was not given an opportunity to cross-examine, challenging the letter's acceptance as per the Evidence Act. 6. Conclusion on Forged Signatures of Naval Officers: The Tribunal concluded the signatures of Naval Officers were forged without examining the officers or comparing the alleged forged signatures with admitted ones. The appellant argued this conclusion was reached without adequate proof. 7. Rejection of Retracted Statements by Employees: The Tribunal rejected the retraction of statements by the appellant's employees, despite no challenge or summons by the Department. The appellant argued that the statute provides for such contingencies, and the retraction should have been accepted as genuine. 8. Assumption of Truth in Letters from Naval Authorities: The Tribunal assumed the truth of letters from Naval Authorities, obtained at the behest of Customs Authorities, without examining the officers or proving the contents as per law. The appellant contended this assumption was unsustainable. 9. Presumption of Genuineness of Letters from Naval Authorities: The Tribunal presumed the genuineness of letters from Naval Authorities despite challenges and production of original Shipping Bills by the appellant. The appellant argued that without corroboration from other evidence in possession of Naval Authorities, this presumption was incorrect. 10. Finding on Non-Supply of Goods: The Tribunal found that goods were not supplied, ignoring the procedure followed by the Bond Officer, Master of the Ship, and Customs Authorities. The appellant argued that none of these officers were examined, and the procedure was adhered to. 11. Adverse Decision Against the Appellant for Non-Supply of Goods: The Tribunal took an adverse decision against the appellant for non-supply, despite the goods being kept in a Bond House with a double lock system, one key held by Customs Authorities. The appellant argued it was impossible to remove goods without Customs' concurrence, and no collusion was alleged in the show cause notice. Preliminary Objection and Jurisdiction: The appeal was dismissed on the ground of territorial jurisdiction. The Tribunal and authorities involved were situated in Visakhapatnam and Hyderabad, not within the jurisdiction of the Madras High Court. The conduct of the appellant amounted to "forum shopping," further justifying the dismissal. Conclusion: The appeal was dismissed as not maintainable due to lack of territorial jurisdiction and forum shopping by the appellant. The merits of the appellant's case were not addressed in this judgment. The appellant was given the liberty to approach the High Court of Andhra Pradesh.
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