2016 (4) TMI 1021 - HC - Customs

Territorial jurisdiction to entertain the petition - Refund of Customs duty - paid at the time of import of the goods - Non-establishment of precondition i.e. there was a non-availment of CENVAT credit for the sanctioning of refund under the Customs Act - Held that - the appellate authority rejected the appeal filed by the petitioner against Ext.P2 order of the 2nd respondent. Both the 2nd respondent, original authority as well as the 3rd respondent, appellate authority are situated in Chennai, within the jurisdiction of the Madras High Court. Going by the decision of the Hon ble Supreme Court in Ambica Industries v. Commissioner of Central Excise 2007 (5) TMI 21 - SUPREME COURT OF INDIA , the High Court having jurisdiction to entertain writ petitions against orders passed by the appellate authorities under the Customs Act, would be the High Court having jurisdiction over the original authority, that passed the first order in adjudication proceedings under the said Act. By applying this test, the jurisdictional High Court in the instant case would be the Madras High Court and not the Kerala High Court. It is noted that the petitioner has an effective alternate remedy by way of an appeal before the CESTAT, under Section 129E of the Customs Act. Thus, in any view of the matter, I do not see any reason to entertain this writ petition, challenging Ext.P7 order of the 3rd respondent. - Decided against the petitioner

Summary

Issues: Jurisdiction of the High Court, Rejection of appeal by appellate authority, Availability of alternate remedy

The judgment concerns a writ petition challenging Ext.P7 order passed by the 3rd respondent, the appellate authority under the Customs Act, located in Chennai. The petitioner sought a refund of customs duty paid during the import of goods, which was rejected by the original authority and subsequently by the appellate authority. The petitioner argued that the service tax division in Kochi needed to provide clarification regarding non-availment of CENVAT credit. The petitioner approached the Kerala High Court, contending that the court had jurisdiction over the matter. The High Court, after hearing both parties, analyzed the jurisdictional aspect. The court noted that both the original authority and the appellate authority were situated in Chennai under the Madras High Court's jurisdiction. Referring to the decision in Ambica Industries v. Commissioner of Central Excise, the High Court clarified that the appropriate jurisdiction for writ petitions against appellate orders under the Customs Act is the High Court having jurisdiction over the original authority. Therefore, the Madras High Court held jurisdiction in this case. Additionally, the court highlighted the availability of an alternate remedy for the petitioner through an appeal before the Customs, Excise, and Service Tax Appellate Tribunal under Section 129E of the Customs Act. Consequently, the High Court dismissed the writ petition challenging the Ext.P7 order of the 3rd respondent, citing the lack of grounds for entertaining the petition.

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