IMPORTANT POINTS
In a case of this nature, therefore, the cause of action doctrine may not be invoked.
In such a situation the High Court situated in the State where the first court is located should be considered to be the appropriate appellate authority.
Determination of the jurisdiction of a High Court on the touchstone of Sections 35G and 35H of the Act should be considered only on the basis of statutory provisions and not anything else.

Headnote:Central Excise Act, 1944 – Section 35G (9) – Jurisdiction of High Court – The Tribunal exercises jurisdiction over all the three States having separate High Courts – In the event the aggrieved person is treated to be the dominus litus, and he elects to file the appeal before one or the other High Court, the decision of that High Court shall be binding only on the authorities which are within its jurisdiction and some sort of judicial anarchy shall come into play – When an appeal is provided under a statute, Parliament must have thought of one High Court and it does not appeal to any reason that Parliament intended, despite providing for an appeal before the High Court, that appeals may be filed before different High Courts at the sweet will of the party aggrieved by the decision of the Tribunal – In a case of this nature, therefore, the cause of action doctrine may not be invoked – Delhi High Court correctly refused to exercise jurisdiction over an order of Tribunal at Delhi arising out of orders of first court at Lucknow. (Para 13 to 15 and 43).
       AIR 1976 SC 331 – Distinguished.
       Constitution of India – Articles 226 and 227 – There cannot be any doubt whatsoever that in terms of Article 227 as also Clause (2) of Article 226, 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 or if any cause of action has arisen there within – But the same tests cannot be applied when the appellate court exercises a jurisdiction over Tribunal situated in more than one State – In such a situation the High Court situated in the State where the first court is located should be considered to be the appropriate appellate authority. (Para17)
       Doctrines – The doctrine of dominus litus or doctrine of situs of the Appellate Tribunal do not go together – Dominus litus indicates that the suitor has more than one option, whereas the situs of an Appellate Tribunal refers to only one High Court wherein the appeal can be preferred. (Para 18).
       Central Excise Act, 1944 – Sections 35G and 35H – Determination of the jurisdiction of a High Court on the touchstone of Sections 35G and 35H of the Act should be considered only on the basis of statutory provisions and not anything else. (Para 20)
       Constitution of India – Article 226 – The phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of Supreme Court rendered on interpretation of Section 20(c) of CPC shall apply to the writ proceedings also. (Para 40).
       Constitution of India – Article 226 – Cause of action – The entire bundle of facts pleaded need not constitute a cause of action, as what is necessary to be proved, before the petitioner can obtain a decree, is material facts – Thus, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered. (Paras 40 and 41).
       2004 (168) ELT 3; (1994)1 SCC 34; AIR 1977 SC 640; (1983)3 SCC 75 – Distinguished.
       1998 (230) ITR 912; (15 1A 156) – Referred to.
       Facts of the case :
       Appellant carries on business at Lucknow. It was assessed at the said place. The matter, however, ultimately came up before Central Excise and Service Tax Appellate Tribunal (CESTAT), New Delhi. The said Tribunal exercises jurisdiction in respect of cases rising within the territorial limits of the State of Uttar Pradesh, National Capital Territory of Delhi and the State of Maharashtra.
       An appeal in terms of Section 35G of the Central Excise Act, 1944 was filed before the Delhi High Court which relying on or on the basis of an earlier Division Bench judgment in Bombay Snuff Pvt. Ltd. vs. Union of India 2006 (194) ELT 264 opined that it had no territorial jurisdiction in the matter.
       Findings of the Court :
       Delhi High Court correctly refused to exercise jurisdiction over an order of Tribunal at Delhi arising out of orders of first court at Lucknow.

JUDGMENT

S.B. SINHA, J.—

1.Leave granted.

2.The issue which arises for our consideration in these appeals relates to determination of situs of the High Court in which appeals would lie under Section 35G(1) of the Central Excise Act.

3.Appellant herein carries on business at Lucknow. It was assessed at the said place. The matter, however, ultimately came up before Central Excise and Service Tax Appellate Tribunal (CESTAT), New Delhi in Appeal No.E/2792/02-NBC. The said Tribunal exercises jurisdiction in respect of cases arising within the territorial limits of the State of Uttar Pradesh, National Capital Territory of Delhi and the State of Maharashtra.

4.Having regard to the situs of the Tribunal, an appeal in terms of Section 35G of the Central Excise Act, 1944 was filed before the Delhi High Court. A Division Bench of the said Court relying on or on the basis of an earlier Division Bench judgment in Bombay Snuff Pvt. Ltd. Vs. Union of India 2006 (194) ELT 264 opined that it had no territorial jurisdiction in the matter.

5.Mr. C. Hari Shankar, learned counsel appearing on behalf of the appellant would submit that despite the fact that sub-section (9) of Section 35G of the Act was brought to the notice of the High Court, the court refused to consider the effect thereof in determining the question of its jurisdiction. Had the said provision been taken into consideration for determination of the issue, it was possible to hold that its decision in Bombay Snuff (supra) had been rendered per incurium. Referring to the development of law governing the field, by reason of the amendment carried out by Parliament in the said Act as also other pari materia statutes, the learned counsel would submit that the High Court was wrong in arriving at the said conclusion.

6.Mr. G.E. Vahanvati, learned Solicitor General of India, on the other hand, would submit that the term ‘cause of action’ applicable in relation to a suit or a writ petition before the High Court having regard to clause 2 of Article 226 of the Constitution of India cannot be the basis for determining the situs of the High Court to which an appeal shall lie under section 35G of the Act. It was submitted that the situs of the Assessing Officer would be the determinative factor for the High Court to exercise its territorial jurisdiction in entertaining appeal thereunder and not the situs of the Tribunal alone.

7.We may, at the outset, notice some provisions of the Act which are relevant for our purpose:-

“35G. Appeal to High Court (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be—-

(9)Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908(5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.”

8.In terms of the said provision, the questions involving “rate of duty of excise or the value of the goods” may be subjected to an appeal before the High Court, subject of course to its satisfaction that the matter involves a substantial question of law. Sub-section (9) of Section 35G, prior to 1999, provided for application of the procedure of Code of Civil Procedure,1908 mutatis mutandis to the appeals to the High Courts, recourse to which could be taken for challenging the final orders of the Tribunal before the High Court. Post 1999, two provisions, namely, Section 35G and Section 35H were made available, the relevant provisions where

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2007 Supreme(SC) 823

Cases Referred (6)