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TMI Blog2005 (12) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... logical Institute of Textile's case [ 1998 (11) TMI 656 - DELHI HIGH COURT] stands overruled sub silentio. Since the decision rendered by this court in the said case directly relates to the provisions of the Central Excise Act under which the present appeal has been filed, we have no option but to follow the said decision and hold that this appeal is not maintainable in this court. The preliminary objection raised by the respondents, therefore, succeeds. Consequently, this appeal shall stand returned to the appellant for presentation before the proper court. - T.S. Thakur and B.N. Chaturvedi, JJ. [Order per : T.S. Thakur, J.]. - An objection, touching the territorial jurisdiction of this Court to entertain this appeal under Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int Commissioner before whom a refund was claimed, pursuant to the said order of the Tribunal, sanctioned the refund in part. That order was challenged by the Revenue before the Commissioner (Appeals). The appeal against partial refund eventually succeeded and the order made by the Joint Commissioner was set aside. The appellant assailed the said order before CESTAT who affirmed the same by its order dated 19th August, 2004 [2004 (177) E.L.T. 655 (Tri. - Del.)]. This order was assailed by the appellant before this Court in an appeal which was dismissed as withdrawn with liberty to the appellants to apply for rectification before the Tribunal. The application for rectification so filed also failed and was dismissed by the Tribunal by its ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitute a cause of action for purposes of conferring jurisdiction upon the Court, the High Courts within whose jurisdiction the authorities passing the orders assailed before them are situate were competent to entertain such petitions. 5.In Technological Institute of Textile's case, this court was examining whether citus of the authority from whose order the proceedings have originated under the Central Excise Act, 1944 was relevant for purposes of conferring jurisdiction on this court to entertain an application under Section 35G of the said Act as stood before its amendment. Taking note of the provisions of Section 36(b) which defines the expression 'High Court' and relying upon decisions of this court in Seth Banarasi Das v. CIT, 1978 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an appeal from every order passed by the Appellate Tribunal. That difference does not however affect the reasoning underlying the view taken by this Court in regard to its jurisdiction to entertain a petition under Section 35G. If a petition seeking reference under Section 35G was not maintainable in this court, there is no reason why an appeal under the said provision after its amendment can be said to be so maintainable. On the reasoning adopted by this court in Technological Institute of Textile's case (supra), an appeal under Section 35G must also be filed only in the High Court who has jurisdiction over the authority from whose order the proceedings have originated. The fact that the main seat of the CESTAT is situated in Delhi or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to decide the matter on merits. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum convenience. The provision of the Central Excise Act and in particular the definition of the term 'High Court' as available in Section 36(b) of the said Act never fell for consideration of the apex court in Kusum Ingots case (supra). It is therefore difficult to hold that the view taken by this court in Technological Institute of Textile's case (supra) stands overruled sub silentio. Since the decision rendered by this court in the said case directly relates to the provisions of the Central Excise Act under which the present appeal has been filed, we have no option but to follow the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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