9911796707
TMI Blog2012 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... msp;When the matter is taken up for hearing learned Counsel for the respondent raised a preliminary objection regarding a territorial jurisdiction of this Court to entertain and hear this appeal. He contended that the Order-in-Original No. 7/2008 is passed by the Commissioner of Customs, Cochin. It is that order which was challenged by the assessee before the CESTAT, South Zonal Bench at Bangalore. In the appeal, the assessee is challenging the correctness of the order passed by the CESTAT, Bangalore. The proceeding originated from Cochin. It is the High Court of Kerala, alone which has the jurisdiction to decide the validity of the order passed by the Tribunal. In support of his contention, he relied on the judgment of the Apex Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses assessee these which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh areas shall be instituted or filed at Allahabad Instead of Lucknow is wrong. The word "hear" 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 be 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 art Allahabad Bench according to the cause of action arising wholly or in part within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered 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 involving 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 Cooking Coal Ltd v Jharia Talikes & 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). 6. However, after referring to the aforesaid Constitution Bench judgment and various other judgments of the Apex Court as well as the various judgments of the High Court dealing with the identical issue, the Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt High Court at the sweet will of the party aggrieved by the decision of the Tribunal. 15. In a case of this nature, therefore, the cause of action doctrine may not be invoked. 17. There cannot be any doubt whatsoever that in terms of Article 227 of the Constitution of India as also clause (2) of Article 226 thereof, the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the Subordinate Courts within its territorial jurisdiction of if any cause of action has arisen there within by the same tests cannot be applied when the appellate court exercise a jurisdiction over Tribunal situated in more one State. In such a situation, in our opinion, the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This cannot be allowed. (See Suresh Desai and Associates v. CIT, 1998 (230) ITR 912 at 915-917 and CCE v. M/s. Technological Institute of Textile in 76 (1998) DLT 862 (DB)." 7. Thus, we have three judgment of the Apex Court which includes a judgment of the Constitution Bench. The Judgment rendered by the Apex Court in Ambica Industries case is directly in conflict with Canon steels Private Limited. It is not possible to reconcile them. In both the Judgments, they have referred to the judgment of the Constitution Bench and it has been interpreted as aforesaid. Therefore, we are bound by the interpretation also. As the judgment in Ambica's case refers to various judgments of Apex Court as well as the High Courts and the said judgment is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
