TRANSFER OF APPEALS

[Mr. M. GOVINDARAJAN]

The provisions of indirect laws provide for appeals before Commissioner (Appeals), Appellate Tribunal, High Court. The principle of law is that the authority having jurisdiction only to entertain an application or appeal. Generally the laws provide for transfer of cases if it is filed in wrong forum or for the interest of public. For example High Court may transfer one from one District Court to another District Court. Supreme Court may transfer all the pending cases before various High Courts having common aspects for the early disposal of the cases.

In this articles some issues in relation to transfer of appeals are to be discussed with reference to decided case laws.

In 'Taher Ali Indus & Projects (P) Ltd., V. Commissioner of Customs, Central Excise and Service Tax, Hyderabad' - 2010 (17) STR 623 (Tri. Bang) the appellant filed an appeal against the Order-in-Original confirming the demand of duty to the tune of Rs.8,79,633/- under Sec. 11A of the Central Excise Act, 1944, equal penalty under Sec. 11AC and interest under Section 11AB and also a penalty under Rule 25 of the Central Excise Rules, 2002 before the Commissioner (Appeals). The appeal has been duly acknowledged. The appeal was filed along with the application of waiver of pre-deposit and stay of demand. When the appellant approached it was orally informed that the case would take its own time and the appellants were to wait till the hearing date is informed.  However the Asst. Commissioner without taking note of the above facts has issued a notice for recovery under Sec. 11A of the Central Excise Act, 1944. The appellant replied that since the appeal was filed along with the stay petition before the Appellate Authority no recovery proceedings can be initiated till the disposal of the stay petition by the Appellate Authority. In spite of the above request, the Assistant Commissioner passed an order of detention under Section 11 of the Act. Against the said order an appeal was filed before the Commissioner (Appeals). The Commissioner (Appeals) held that the appeal cannot file before him against the detention memo. Therefore the present appeal filed by the appellant.

The appellant contended that the Commissioner (Appeals) instead of getting the appeal paper books transferred from the office of the Commissioner, Hyderabad - II Commissionerate has disposed of the case without the application of mind. The Department contended that the appellant ought to have filed the appeal against the order in the right forum. Instead of doing that, the appellant had filed appeal only against the detention order issued by the Joint Commissioner and the Department justified the order as legal and proper.

The Tribunal found that the appeal filed by the appellant has been received by the Commissioner of Customs & Central Excise, Hyderabad - III Commissionerate. However the appeal has been filed in the wrong forum. The concerned authority, who received the appeal papers from the appellant, ought to have guided the appellant properly. It is common knowledge that such mistakes normally happen. Alternatively, this appeal should have been transferred to the Commissioner (Appeals). When there is so much publicity with regard to the Citizens Charter and the Government considering the Central Excise assessees as partners in progress, it is expected that the Commissionerate followed a Tax paper friendly approach. In any case, the authority which received the appeal paper could have returned the same to the appellant. None of the above thins had been done. In these circumstances, the initiation of recovery proceedings while the appeal and stay application are pending is not all justified. The Departmental authorities should have transferred the appeal papers to the Commissioner (Appeals). The Tribunal remanded the case to the Commissioner (Appeals) who would examine the appeal filed by the appellant in the wrong forum. The Commissioner of Customs, Central Excise, Hyderabad - III Commissionerate, who received the appeal, should transfer the papers to the Commissioner (Appeals) for necessary action.

In 'Metal Gems V. Commissioner of Central Excise, Daman' - 2010 (17) STR 611 (Tri. Ahmd) the application is for transfer of appeal to Mumbai even though the impugned order was passed by Commissioner of Central Excise, Daman and the normal jurisdiction lies with Ahamedabad bench. The appellant made a request to the President for transfer of appeal to Mumbai. It was informed to him that the appeals are required to be filed at Ahamedabad Bench and if the sufficient cause was shown, the appeals may later on, be transferred to another bench. Hence the application was stand for the transfer of appeals to Mumbai Bench on the ground that the appellant's head office is located in Mumbai. The Tribunal found that Public Notice No.02 of 2005, dated 5.8.05 issued by the President has withdrawn earlier orders vide which the powers were given to the Bench to transfer the matters on the ground that the principal/head office is situated under the jurisdiction of other bench. As such the Tribunal held that the Bench did not have any power to transfer the matter to another bench, on the ground that head office of the appellant is situated under the jurisdiction of that bench.

In 'M/s Godrej Foods Ltd., V. Commissioner of Central Excise, Indore' - 2006 (4) STR 345 (Tri.) it was held that the transfer of appeals on the ground of principal office/head office under the jurisdiction of other benches is no reason to transfer the appeal.

In 'Haren Choksey V. Commissioner of Customs, Chennai' - 2010 (17) STR 594 (Tri. Chennai) the application was filed by the application for the transfer of appeal to the West Zonal Bench, Mumbai. The appeal was filed against an order passed by the Commissioner of Customs, Chennai. In this application it was submitted that the appellant is residing at Mumbai and, therefore, he can prosecute the case at Mumbai in a cost effective manner, if the transfer of the case to the West Zonal Bench is allowed. The Department contended that it would be easier to conduct the case at Chennai as all the records of the case are available at Chennai. The Tribunal held that the procedure of transfer of the Tribunal which is governed by Section 129 C (6) of the Customs Act. The power conferred on the Tribunal under this provision is exercised by the President in matters pertaining to transfer an appeal between zonal Benches. It was in exercise of such authority that Public Notice No.2 of 2005, dated 05.08.2005 was issued which superseded all previous orders on the subject. The said notice has withdrawn the powers given to the Bench to transfer the matters on the ground that principal office/head office is situated under the jurisdiction of other bench. According to this public notice, the captioned appeal was rightly filed with this Bench and must be heard by this Bench. However when the appellant seeks a transfer to another Bench within whose jurisdiction he resides, such application cannot be entertained by this Bench without reference to the President. For this reason the Tribunal directed the Registry to place the matter before the President for appropriate orders.