Gujarat High Court
Adani Power Limited & vs Union Of India & 4 on 7 April, 2016
Author: Akil Kureshi
Bench: Akil Kureshi, A.Y. Kogje
C/SCA/19319/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 19319 of 2015
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ADANI POWER LIMITED & 1....Petitioner(s)
Versus
UNION OF INDIA & 4....Respondent(s)
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Appearance:
MR KAMAL TRIVEDI, SR ADV WITH MR. UDAY JOSHI WITH MR. VINAY
BAIRAGER FOR M/S. TRIVEDI & GUPTA, ADVOCATE for the Petitioner(s)
No. 1 - 2
MR RJ OZA, ADVOCATE for the Respondent(s) No. 2
MR VIVEK B GUPTA, ADVOCATE for the Respondent(s) No. 5
MR. PARTH H BHATT, ADVOCATE for the Respondent(s) No. 1 , 4
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 07/04/2016
ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioners have prayed for a writ, order or direction quashing and setting aside an Order-in-Appeal dated 31.08.2015 passed by respondent No.2-Commissioner (Appeals) Central Excise, Customs and Service Tax, Bhubaneswar, Odisha. The petitioners have also prayed for a further direction for refund of the central excise duty to the tune of 44.34 crores (rounded off) by way of consequential relief. This petition is opposed by the respondents primarily on the ground of territorial jurisdiction.
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2. In order to appreciate such ground and the response of the petitioners to the same, we may record relevant facts. The petitioner No.1 is a unit situated in Mundra Special Economic Zone. The petitioner had purchased coal from respondent No.5 one Mahanadi Coalfields Limited situated at Orissa. Being a SEZ Unit, the petitioner claims exemption from payment of excise duty on such coal. The applications for refund of such duty were filed before the Deputy Commissioner i.e. Customs, Excise and Service Tax, Cuttak Division, respondent No.3 herein. Such refund applications came to be dismissed by him by several separate orders. Copies of these orders are produced at Annexure I collectively. Petitioners preferred appeals before the Appellate Commissioner. All such appeals were dismissed by a common order dated 20.11.2014. Upon perusal of the order of the adjudicating authority as well as the appellate authority, we notice that the authorities had doubt about jurisdiction to entertain the petitioners' applications for refund. This doubt was based on the fact that the unit was situated in SEZ and the question, therefore, in the minds of the authorities was whether the Central Excise Authorities or the SEZ Authorities would be competent to entertain such refund claims? However, the petitioner was armed with the judgement of this Court in case of Messrs Anita Exports & anr vs. Union of India and ors reported in (2015) 320 ELT 743. The authorities, therefore, while expressing serious concern about their jurisdiction also Page 2 of 4 HC-NIC Page 2 of 4 Created On Wed Apr 13 00:45:55 IST 2016 C/SCA/19319/2015 ORDER decided the claims on merits. Both the authorities have held that the refund could not be granted. We are not concerned with the reasons why the authorities held such belief. Suffice it to record these orders the petitioners have challenged in this petition. In this context, the respondents have raised the question of territorial jurisdiction.
3. Learned counsel Mr. Kamal Trivedi for the petitioners contended that in terms of Article 226(2) of the Constitution, the writ jurisdiction of the High Court can have extra territorial writ. In the present case, the coal was consumed by the petitioners at Mundra. The event of non-excisability of the coal arises on account of the unit being situated in SEZ area. Thus, substantial portion of the cause of action has arisen in the writ jurisdiction of this High Court. He placed reliance in case of Nawal Kishore Sharma vs. Union of India and ors reported in (2014) 9 SCC 329.
4. On the other hand, learned counsel Mr. R.J.Oza for the Department submitted that both the Excise Authorities are situated at Orissa, where the refund claims and appeals were filed. The order of the Appellate Commissioner is even otherwise appealable before the CESTAT. This Court, therefore, has no jurisdiction to entertain this petition.
5. Undisputedly, the petitioners challenged the orders passed by the Excise Authorities. The order of the adjudicating authority Page 3 of 4 HC-NIC Page 3 of 4 Created On Wed Apr 13 00:45:55 IST 2016 C/SCA/19319/2015 ORDER i.e. the Deputy Commissioner, Customs, Excise and Service Tax, Cuttak, have merged with that of the Commissioner (Appeals), Bhubaneswar, i.e. the appellate order which the petitioners have targeted. Whatever be the ground for challenging such order, the fact remains that both the Excise Authorities are situated at Orissa. Further appeal against the order of the Appellate Commissioner would be competent before the jurisdictional CESTAT. Any further proceedings would, therefore necessarily lie before the High Court at Orissa. Merely because in the case of Messrs Anita Exports & anr vs. Union of India and ors export, this Court has given its expression on interpretation of statutory provisions which may be applicable in the present case would not permit us to examine the orders of the Excise Authorities situated at Orissa. Quite apart from that, therefore, the question of alternative remedy being available before the concerned CESTAT, on the question of territorial jurisdiction, we are not inclined to entertain this petition. The same is disposed of accordingly.
(AKIL KURESHI, J.) (A.Y. KOGJE, J.) Jyoti Page 4 of 4 HC-NIC Page 4 of 4 Created On Wed Apr 13 00:45:55 IST 2016