Madras High Court
M/S.Zeenath International Supplies vs The Commissioner Of Customs on 3 March, 2014
Author: T.S.Sivagnanam
Bench: Chitra Venkataraman, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.03.2014 Coram The Honourable Mrs.Justice CHITRA VENKATARAMAN and The Honourable Mr.Justice T.S.SIVAGNANAM Civil Miscellaneous Appeal No.1336 of 2006 --- M/s.Zeenath International Supplies, 23-22-2, Sivalayam Street, Visakhapatnam 530 001 .. Appellant -vs- 1.The Commissioner of Customs, Customs House, Port Area, Visakhapatnam 530 035. 2.Customs, Excise & Service Tax Appellate Tribunal South Zonal Bench, Shastri Bhavan Annexe, First Floor, 26, Haddows Road, Chennai 600 006. 3.Shri.Mohammed Alishan 4.Shri.G.Rajeswara Rao 5.M/s.Zeenath International Supplies, 10/2, Moore Street, Chennai 600 001. 6.Shri.Md.Yusufuddin .. Respondents No relief sought for respondents 3 to 6, Hence Given up. Civil Miscellaneous Appeal filed under Section 130 of the Customs Act, 1962, against the impugned Final Order No.1564 to 1568, dated 19.12.2005, passed by the second respondent in so far as the appellant is concerned, allow this appeal. For appellant : Mr.A.K.Jayaraj For respondent : Mr.A.P.Srinivas CGC, for R1 R2 Tribunal RR3-6 Given Up JUDGMENT
T.S.SIVAGNANAM, J.
This appeal is directed against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, [Tribunal] Chennai Branch, dated 19.12.2005 in Final Order Nos.1564 to 1568 of 2005.
2. The appeal has been admitted on the following substantial questions of law:
1. When admittedly none of the officers of the Customs Department, who had signed at the back side of the Shipping Bills in their capacity as "Proper Officers" were not examined and no proof has been let in to show that these officers colluded with the appellant, whether the Tribunal is right in concluding that the goods were not delivered to the Naval Authority.
2. Whether the Tribunal is right in taking a presumption under Section 114(c) of the Evidence Act the report of the Naval Authorities is final and presumed to be true even through none of the Naval Authorities has been examined and alleged corresponding letters were not proved.
3. Whether the Tribunal is right in stating that the appellant has not discharged his burden of proof by not leading any rebuttal evidence while the appellant had produced the original of the Shipping bills.
4. Whether the Tribunal is right in not accepting the shipping bills which has been duly signed by the Master of the vessel with due endorsement, that the contents were received on Board, especially when the Master of the vessel is Competent Authority for certifying the receipt of the goods.
5. Whether Tribunal was right in accepting the letter dated 28.02.1996 of the Flag Officer, Commander-in-Chief, when nobody was examined to prove such a letter and the appellant had not been given an opportunity to cross examine either the author of the letter, or person who is in charge of the Section, thereby, when the letter is not proved as per Evidence Act, whether the Tribunal is right in accepting the same.
6. Whether the Tribunal is right in concluding that the signature of the Naval Officers were forged and none of the Officers whose signatures is said to have been forged has been examined or any other admitted signature were not produced and compared with the alleged forged signatures.
7. Whether the Tribunal is right in rejecting the retraction of the statement by employees of the appellant's company when admittedly none of the employees were challenged by the Department by way of examination of them or issued summons regarding retraction, when the statute specifically provides for such a contingency and therefore, Tribunal ought to have accepted the retracted statement as true and genuine and rejection of the same by the Tribunal is illegal and unsustainable in law.
8. Whether the Tribunal is right in assuming truth or otherwise of the letter of the Naval Authorities when those letters were not came into existence during the course of official business at original instance. But, obtained only at the behest of the Customs Authorities and the said officers were not examined and the contents of the said letters are not proved as per law.
9. Whether the Tribunal is right in taking a presumption of the genuineness of the letters of the Naval Authority when the same was challenged by production of the original shipping bills and therefore, unless the letter were corroborated with other evidences which are in the possession of the Naval Authority, the presumption of the Tribunal is un-sustainable in law. When admittedly, the shipping bills are made in quadruplicate, neither the Customs Authority or the Naval Authority issued questions to the Master of the Ship when admittedly, the Naval High Command Office and the Master's copy and the Customs copy are linked by the Controller of Defence Accounts (Navy). The non-production of such documents which are in the command of the Customs Authorities and therefore, for non-production of such vital documents, the Tribunal should have taken adverse inference against the Customs case.
10. Whether the Tribunal is right in finding that the goods were not supplied, when admittedly physical accompliment of Bond Officer and the Master of the Ship and the Customs Authorities were admittedly followed a procedure and that none of these officers whose name finds place in back side of the shipping bills has been examined.
11. Whether the Tribunal was right in taking an adverse decision against the appellant for non-supply when the goods are kept in the Bond House with double look system and one key is with the Customs Authorities and therefore, it was impossible for the appellant to remove the goods without the concurrence and usage of other key by the Customs Authority especially when no collusion was alleged in the show cause notice.
3.The appellant is a licensed Private Bonded Ware House with licences bearing Nos.1/85 and 8/94, issued under section 58 of the Customs Act, 1964 [the Act]. The licences enable them to store bonded goods like liquor, cigarettes, perfumes, etc. for supply as Shipstores to various vessels. On 08.02.1996, the Andhra Pradesh State Excise Department registered a case against the appellant for alleged diversion of bonded goods including liquor. The appellant was issued notices dated 26.3.1996 and 04.04.1996, both for shortages and excesses in terms of section 72(1)(d) of the Act. The appellant submitted their reply dated 30.03.1996, for the notice dated 26.03.1996, stating that there was no shortage of goods, they had applied for release of goods described in the notice to supply the same to Naval ships, vide Shipping Bills dated 07.02.1996, goods were released by the Bond Officer on the same day, however, the same were seized by the Prohibition & Excise Department, Gajuwaka. The appellant filed a Writ Petition before the High Court of Andhra Pradesh, which had ordered release of the goods and directed the Deputy Commissioner, Prohibition Excise to deliver the goods to the Customs Authorities, who were to deposit the same in the warehouse of the appellant. The appellant continued to maintain the stand that as there was no shortage, they not liable to pay Customs Duty of Rs.5,35,753/-. In respect of the show cause notice dated 04.04.1996, alleging excesses, the appellant by letter dated 08.05.1996, sought for photostat copies of registers seized by the Customs on 13.02.1996. The copies of the said registers were provided to the appellant and they submitted their reply dated 10.06.1996 offering an explanation as regards the shortages. The Original Authority adjudicated the show cause notice and by order dated 04.07.1996, held that the appellant have not been able to satisfactorily account for all the discrepancies noticed in the stock verification and in terms of Section 72(1) of the Act, the appellant was directed to pay duty amounting to Rs.4,61,612/- and penalty of Rs.50,000/-.
4. Aggrieved by such order of the Original Authority, the appellant preferred appeal before the Commissioner of Customs and Central Excise (Appeals), Hyderabad. The first Appellate Authority modified the order of the Original Authority taking note that the appellant has already paid Rs.2,00,000/- as against the demanded amount of Rs.4,61,612/- and reduced the demand of duty to Rs.1,197/- and reduced the penalty to Rs.5,000/-. The appellant was issued a show cause notice dated 15.04.1998, under Section 124 of the Act calling upon the appellant as to why the custom duty of amounting to Rs.46,60,272/- should not be recovered from them in terms of Section 28(1) of the Act read with proviso there under for not supplying the goods to Naval Ships, but diverting them for local sale; why interest should not be demanded and recovered under Section 28AB and that the goods should not be confiscated under Section 111(d)(j) & (o) of the Act. Apart from invoking Section 114A of the Act and proposing penalty under Section 112 on the employees of the appellant. The appellant was called upon to show cause as to why the penalty under Section 112 of the Act, should not be imposed on them to having been abetted the act of diversion of bonded stores. The appellant submitted their reply dated 11.08.1998, denying their complicity in the matter and requested for a personal hearing to be given to them and seeking permission to engage an Advocate. The Commissioner of Customs, Visakhapatnam, adjudicated show cause notice and by order dated 31.03.1999, confirmed the demand of duty of Rs.46,60,272/-, under Section 28 of the Act read with proviso thereunder along with interest thereon under Section 28AB of the Act, ordered confiscation of the goods with an option to redeem the same on payment of Rs.5,000/-. Apart from imposing penalty equivalent to that of duty under Section 114A on the appellant and Rs.10,00,000/- penalty on the Manager and Rs.20,00,000/- on the Sales Representative. Apart from penalty of Rs.1,00,000/- on M/s.Abid Stores, who bought the goods
5. Aggrieved by the order of the Commissioner of Customs Visakhapatnam, the appellant preferred appeal before the Customs Excise and Gold Control Appellate Tribunal (Tribunal) along with appeal, the appellant filed an application for stay of the order, dated 31.03.1998, along with waiver pre-deposit. The Tribunal directed the appellant to pay pre-deposit to a sum of Rs.25,00,000/- and the individuals to deposit a sum of Rs.10,000/- each by order dated 11.11.1998. The appellant filed a writ petition before this Court in W.P.No.16490 of 2000, challenging the order passed by the Tribunal dated 11.11.1998 and the consequential order dated 25.04.2000, by which the appeal before the Tribunal stood dismissed. The writ petition was dismissed as withdrawn by this Court by order dated 13.10.200, since a submission was made on behalf of the appellant that they proposed to file a writ petition before the High Court of Andhra Pradesh. Thereafter, the appellant filed a writ petition before the Andhra Pradesh High Court and the same was dismissed. The High Court of Andhra Pradesh exercised discretion extended the time for compliance of the pre-deposit by two months. The appellant instead of complying with the order filed miscellaneous applications to restore the appeals, which were dismissed as per order dated 25.04.2000, for compliance of the direction to pre-deposit a sum of Rs.25,00,000/-. The Tribunal after noticing the conduct of the appellant in approaching this Court at the first instance withdrawing the said writ petition, thereafter approaching the High Court of Andhra Pradesh and after having been unsuccessful filing a petition for restoration of the appeal, rejected the application for restoration. Taking into consideration the submission made on behalf of the department, that in the event, the appellant depositing the entire amount of Rs.25,00,000/-, in one lumpsum within one month, the Commissioner shall not decline to accept it on the ground that the appeals have been dismissed by the Tribunal and by the same order dated 20.09.2001, the application filed by the appellants for modification of the order of stay was dismissed as not pressed. As undertaken by the appellant, the amount of Rs.25,00,000/- was deposited before the Visakhapatnam Customs on 22.10.2001. Thereafter, the main appeals were taken up for consideration by the Tribunal. The Tribunal pointed out that the preponderance of evidence is enough for the department to establish their case that the ships stores were fraudulently removed from the bonded warehouses and diverted by the appellant to the private market and the department should be held to have discharged their burden of proof. Accordingly, the appellant was held liable to pay duty of custom on the ship stores and the available goods were liable for confiscation and imposed redemption fine of Rs.21,000/-. The penalty imposed on the appellant under Section 114A of the Act was vacated on the ground that the said provision is not in force during the period when the fraud was committed. The penalty on the employees was reduced to Rs.5,00,000/- each, the penalty imposed on the purchaser under Section 112 was vacated. Challenging the said order dated 19.12.2005, this appeal has been preferred.
6. When this appeal was set down for hearing before this Bench, Mr.A.P.Srinivas, learned Standing counsel appearing for the respondent/Revenue raised a preliminary objection as regards the maintainability of the appeal before this Court. It was contended that the appellant was a licensed bonded warehouse in Visakhapatnam and the licences having been granted by the Commissioner of Customs, Visakhapatnam; the fraud committed by the appellant was deducted at Visakhapatnam; the show cause notice was issued by the customs authorities at Visakhapatnam and the show cause notice was adjudicated and order in original was passed by the Assistant Commissioner of Customs, Visakhapatnam. Aggrieved by this, the appeal preferred appeal before the Commissioner of Customs and Central Excise (Appeals), Hyderabad, who by order dated 10.11.1998, dismissed the appeal. Thereafter, show cause notice was issued to the appellant under Section 124 of the Customs Act by the Commissioner of Customs, Visakhapatnam. This was adjudicated and order in original was passed by the Commissioner, Visakhapatnam, by order dated 31.03.1999. The appellant filed appeal as against the said order before the Tribunal and the Tribunal passed an interim order, dated 11.11.1999. As against the said order, the appellant initially filed a writ petition before this Court in W.P.No.16490 of 2000, withdrawing the writ petition on the ground that they proposed to move the High Court of Andhra Pradsh and the writ petition was dismissed by this Court on 13.10.2000. Thereafter, the appellant moved the High Court of Andhra Pradhesh and the writ petition was dismissed and the order passed by the Tribunal was confirmed. Therefore, it is contended that the present appeal which has been filed under Section 130 of the Customs Act is not maintainable before this Court as the cause of action for filing the appeal does not arise within the jurisdiction of this Court as the situs of the Assessing Officer will determine the jurisdiction and not the situs of the Tribunal in this regard. The learned counsel appearing for the Revenue in support of his submission relied upon the decision of the Hon'ble Surpeme Court in the case of Ambica Industries vs. Commissioner of Central Excise, reported in (2007) 6 SCC 769; the decision of the Full Bench of the High Court of Delhi in the case of New India Assurance Co., Ltd., vs. Union of India & Ors., reported in AIR 2010 Delhi 43; and the decision of the Special Bench of the High Court of Delhi constituted for reconsideration of the decision of the Full Bench of the High Court of Delhi in the case of M/s.Sterling Agro Industries Ltd., vs. Union of India & Ors., reported in AIR 2011 Delhi 174, (SB).
7. Since the question relating to the jurisdiction of this Court was raised as a preliminary objection, we directed the learned counsel appearing for the appellant to address arguments on the contention raised by the Revenue as regards the territorial jurisdiction of this Court to entertain this appeal under Section 130 of the Act.
8. The learned counsel appearing for the appellant placed reliance on the decision of the Full Bench of this Court in the case of Sanjos Jewellers vs. Syndicate Bank reported in 2007 (5) CTC 305, and submitted that in the said case, the writ petition was filed challenging an order of the Debt Recovery Appellate Tribunal situated within the territorial limit of this Court while the Original Tribunal was situated in the State of Andhra Pradesh. While considering "cause of action" the Full Bench held that the writ petition before this Court is maintainable. The learned counsel also placed reliance on the decision of this Court in the case of R.Raman vs. National Insurance Company Ltd., reported in (2011) 5 MLJ 849, and the decision of the Hon'ble Supreme Court in the case of Canon Steels P., Ltd., vs. Commissioner of Customs (Export Promotion)., reported in 2007 (218) E.L.T., 161 (S.C.,). Therefore, it is the contention of the appellant that though the Original Authority, the first Appellate Authority were situated in the State of Andhra Pradesh, the order passed by the Tribunal would be a relevant factor for the appellant choosing to file this appeal before this Court and the doctrine of forum convenience would be very relevant when part of the "cause of action" has arisen within the jurisdiction of this Court.
9. We have heard the learned counsels appearing for the parties on the preliminary objection as regards the maintainability appeal before this Court and we have carefully perused the decisions cited at the bar.
10. The issue which fell for consideration before the Hon'ble Supreme Court in the case of Ambica Industries, referred above, was relating to determination of situs of the High Court in which appeals would lie under Section 35G(1) of the Central Excise Act (pari materia to Section 130 of the Customs Act). The appellant therein was an assessee under the provisions of the Central Excise Act. The assessment proceedings ultimately went before the Tribunal at New Delhi. At the relevant point of time, the CESTAT, New Delhi exercised jurisdiction in respect of cases arising within the territorial limits of the State of Uttrapradesh, National Capital Territory of Delhi and the State of Maharastra. As the situs of the Tribunal was at Delhi, an appeal under Section 35G of the Central Excise Act was filed before the Delhi High Court. The Division Bench of the Delhi High Court held, it had no territorial jurisdiction in the matter. Challenging the same, the assessee preferred appeal to the Hon'ble Supreme Court. The Union of India resisted the appeal contending that the term of "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 Central Excise Act. It was further 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.
11. The Hon'ble Supreme Court after noticing the earlier Five Judges Bench judgment in the case of Nasiruddin vs. S.T.A., Tribunal reported in (1975) 2 SCC 671, pointed out that the decision of a Tribunal would be binding on the Assessing Authority and if the situs of the appellate Tribunal should be considered to be the determinative factor, a decision rendered by the Tribunal shall be binding on all the authorities exercising its jurisdiction under the said Tribunal. In the said case, the Delhi Tribunal exercised jurisdiction over all the three States and in all the three States there are High Courts. It was further pointed out that in the event, aggrieved person is treated to be a dominus litus, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction and it will only be of persuasive value on the authorities functioning under a different jurisdiction. It was held that if the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or Courts or Tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play, pointing out that an assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and which might suit him and would be able to successfully evade the law laid down by the High Court at Bombay. Furthermore, it was held that when an appeal is provided under a statute, Parliament must have thought of one High Court and it is a different matter that by way of necessity, a Tribunal may have to exercise jurisdiction over several States, but 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 and in the case of this nature, the cause of action doctrine may not be invoked. The Hon'ble Supreme Court further held that in terms of Article 226(2) of the Constitution, High Court has 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 jurisdiction over a Tribunal situated in more than one State and 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.
12.Therefore, it was held that determination of the jurisdiction of the High Court on the touchstone of Sections 35G and 35H of the Central Excise Act should be considered only on the basis of statutory provisions and not anything else. After referring to the decision of this Court in the case of Commissioner of Income Tax, Vs. S.Sivaramakrishna Iyer reported in 1968 (70) ITR 860(Madras), the decision of the Delhi High Court in the case of Seth Banarsi Dass Gupta vs. Commissioner of Income Tax, reported in (1978) 113 ITR 817 (Del), and the decision of the Hon'ble Supreme Court in the case of Kusum Ingots & Alloys Ltd., vs. Union of India, reported in (2004) 168 ELT 3, held that although in terms of Article 227 of the Constitution as also Article 226(2) thereof, the High Court would exercise its discretionary jurisdiction as also the 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 therewithin but the same tests cannot be applied when the appellate court exercises a jurisdiction over a 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. CPC did not contemplate such a situation. Further, it was pointed out that the submission of the appellant is inconsistent and contradictory. The doctrine of dominus litis or doctrine of situs of the appellate Tribunal do not go together. Dominus litis 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. Further, the Apex Court held that the situs of a Tribunal may vary from time to time and it could be Delhi or some other place. Whether its jurisdiction would be extending to three States or more or less would depend upon the executive order which may be issued. 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. While defining the High Court in terms of Section 36(b) of the Act, Parliament never contemplated to have a situation of this nature and if the cause of action doctrine is given effect to, invariably more than one High Court may have jurisdiction, which is not contemplated.
13. The learned counsel appearing for the appellant by placing reliance on the decision of the Hon'ble Supreme Canon Steels P., Ltd., referred supra, submitted that the case before the Hon'ble Supreme Court arose under the Customs Act in an order under Section 130 of the Customs Act, which was dismissed by the Punjab & Haryana High Court on the ground that it had no jurisdiction to deal with the matter as the adjudicating authority was situated at Mumbai and the High Court referred to the decision in Kusum Ingots & Alloys Ltd., referred supra. It is submitted that the Hon'ble Supreme Court in the said case held that the petitioner can choose his forum, when part of the "cause of action" arise within the one or other High Court.
14. It is to be pointed out that the decision in the case of Ambica Industries, referred supra, though rendered about six months earlier than the decision in the case of Canon Steels P., Ltd., referred supra, i.e., on 18.05.2007, the same was not placed for consideration before the Hon'ble Supreme Court. In the case of Canon Steels P., Ltd., reference was made to the decision of the Hon'ble Supreme Court in the case of Nasiruddin vs. S.T.A., Tribunal, (supra), in fact this decision was taken note of by the Hon'ble Supreme Court in the case of Ambica Industries, referred supra, and it was pointed out that the decision of the Tribunal would be binding on the Assessing Authority and if the situs of the appellate Tribunal should be considered to be a determinative factor, a decision rendered by a Tribunal shall be binding on all the authorities exercising its jurisdiction under the said Tribunal and pointing out that if the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or Courts or Tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play, pointing out that an assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and which might suit him and would be able to successfully evade the law laid down by the High Court at Bombay.
15. Even in the case of Canon Steels P., Ltd., (supra), ultimately, the Hon'ble Supreme Court held that the Punjab & Haryana High Court was justified in its view as the Original adjudication order and the appellate order were not issued by any authority within its territorial jurisdiction, but considering that no person should be left without the remedy though the case was withdrawn by the asessee, direct the restoration of the said case as undisputably, the Delhi High Court has jurisdiction to deal with the matter and the Delhi High Court was directed to deal the matter on merits. Therefore, the decision in the case of the Canon Steels P., Ltd., (supra), does not in any manner advance the case of the appellant and the decision of the Hon'ble Supreme Court in the case of Ambica Industries, referred supra, would be squarely applicable to the facts of this case.
16. The learned counsel by placing reliance on the decision of the Full Bench of this Court in the case of Sanjos Jewellers vs. Syndicate Bank, (supra), and the decision of this Court in the case of R.Raman vs. National Insurance Company Ltd., (supra), and submitted that this Court would have territorial jurisdiction. Firstly it is to be noted that both the cases before the Full Bench as well as in the case of R.Raman vs. National Insurance Company Ltd., (supra), arose out of a writ petition under Article 226 of the Constitution of India and by taking into consideration clause (2) of Article 226, the decision was rendered. Nevertheless, when there is a conclusion that the litigation amounts to forum shopping, the Court would refuse to exercise discretion to entertain a writ petition. In this regard, reference was made to the decision of this Court in the case of Bhanu Construction Co., (P) Ltd., vs. Andhra Bank, reported in (2005) 5 CTC 721. Similarly in the case of R.Raman vs. National Insurance Company Ltd., (supra), the decision was rendered with reference to the jurisdiction to issue a writ under Article 226 of the Constitution of India in the light of clause (2) of Article 226. Therefore, the decisions are wholly inapplicable to the facts of the case on hand, we have no hesitation to hold that the appeal filed by the appellant before this Court is not maintainable in the light of the law laid down by the Hon'ble Supreme Court in the case of Ambica Industries, referred supra.
17. Having held that the appeal is not maintainable owing to the above stated legal position, we have one more reason to reject the appeal as the conduct of the appellant clearly amounts to "forum shopping". As pointed out earlier as against the order passed by the Original Authority, who was located at Vishapattinam, the appellant preferred appeal to the Commissioner of Customs (Appeals), Hyderabad. The appeal was rejected by order dated 31.03.1999. Aggrieved by the said order, the appellant preferred appeal to the Tribunal and filed Miscellaneous Applications for waiver pre-deposit and stay. The Tribunal passed an order on 11.11.1999 and imposed a condition that the appellant shall pre-deposit an amount of Rs.25,00,000/- within a time frame. Since, the interim order was not complied with, the appeal was dismissed by the Tribunal by order dated 25.04.2000. Challenging the orders dated 11.11.1999 and 25.04.2000, the appellant moved this Court by way of writ petition in W.P.No.16490 of 2000, the said writ petition was dismissed as withdrawn, as it was represented that the appellant proposes to move the High Court of Andhra Pradesh. The High Court of Andhra Pradesh dismissed the writ petition filed by the appellant and confirmed the order of the Tribunal as regards the pre-deposit, but in exercise of its discretion extended the time for compliance by two months. Though the appellant has not filed the copy of the orders passed in the writ petitions, it has been recorded in the order passed by the Tribunal, dated 20.09.2001. The appellant did not comply with the order passed by the High Court of Andhra Pradesh and did not deposit the amount within the time granted. Having failed to do so, the appellant filed Miscellaneous Application before the Tribunal to restore the appeal and to modify the pre-deposit order. This came to be rejected by the Tribunal by order dated 20.09.2011. Nevertheless, there was an observations by the Tribunal that the Commissioner should not decline to accept the sum of Rs.25,00,000/-, the appellant pays the sum in one lump sum within one month. The appellant complied with the order and the said amount has been deposited on 22.10.2001. The Tribunal disposed of the appeal by order dated 19.12.2005. Therefore, the appellant having already agitated the matter before the High Court of Andhra Pradesh as against the interim order of the Tribunal and knowing fully well that the adjudicating authority as well as appellate authority are situated within the jurisdiction of the High Court of Andhra Pradesh, the appellant was carrying on business at Visakhapatnam, choose to file this appeal before this Court. That apart even earlier the appellant moved the High Court of Andhra Pradesh for release of the goods in which direction was issued to the Andhra Pradesh State Excise authorities to deliver the siezed goods to the Customs Authorities of Andhra Pradesh to be kept in the wareshouses. The conduct of the appellant in filing the appeal before this Court is not appreciable and it is a definite case of "forum shopping". This is one more reason for us to hold that the appeal cannot be entertained by this Court. Accordingly, the preliminary objection raised by the learned counsel appearing for the Revenue is sustained and the appeal is dismissed as not maintainable.
18. The learned counsel appearing for the appellant submitted that the appeal having been admitted in 2006, the appellant should not be compelled to approach the High Court of Andhra Pradesh and the appeal should be heard on merits. The submission deserves to be rejected, since this is not a case where the appellant has approached this Court by way of writ petition under Article 226 without availing the statutory appellate remedy and in certain cases, the Hon'ble Supreme Court has held that if the writ petitions have been entertained and pending for a long period of time, the petitioner should not be relegated to the statutory Appellate Authorities. Such principle cannot be applied to the case on hand, as being a statutory appeal under Section 130 of the Act and the territorial jurisdiction of this Court cannot extend over the authorities functioning under the Customs Act in the State of Andhra Pradesh. Therefore, such contention raised by the appellant is rejected.
19. The learned counsel appearing for the appellant requested this Court to grant liberty to the appellant to approach the High Court of Andhra Pradesh. No such liberty can be granted to the appellant except to observe that the appeal before this Court was presented on 10.04.2006, within the period of limitation and admitted on 13.04.2006. It is open to the appellant to move the High Court of Andhra Pradesh, if he is so advised. It is made clear that the appeal has been dismissed solely on the ground of territorial jurisdiction of this High Court to entertain the appeal and the merits of the appellant's case has not been dealt with in this Judgment. No costs.
(C.V.,J) (T.S.S.,J) 03.03.2014 Index:Yes Internet:Yes pbn
Note:-The Registry is directed to return the Original Certificate copy of the order passed by the Tribunal, dated 19.12.2005, after retaining a photocopy of the same.
To
1.Customs, Excise & Service Tax Appellate Tribunal South Zonal Bench, Shastri Bhavan Annexe, First Floor, 26, Haddows Road, Chennai 600 006.
2.The Commissioner of Customs & Central Excise (Appeals), Lal Bahadur Stadium Road, Basheersagh, Hyderabad 500 004.
3.The Commissioner of Customs, Custom House, Port Area, Visakhapatnam 530 035.
4. The Customs Excise & Gold (Control) Appellate Tribunal, South Zonal Bench, Chennai.
5. The Customs Excise & Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
CHITRA VENKATARAMAN, J.
and T.S.SIVAGNANAM, J.
pbn Pre-Delivery Judgment in Civil Miscellaneous Appeal No.1336 of 2006 03.03.2014