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CASE NO.: Appeal (civil)  2749 of 2007

PETITIONER: M/s. Ambica Industries

RESPONDENT: Commissioner of Central Excise

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  2749                   2007 [Arising out of S.L.P. (C) No. 18405 of 2006] WITH CIVIL APPEAL NO. 2750/2007 @ S.L.P.(C)No. 18822 of 2006 CIVIL APPEAL NO. 2751/2007 @ S.L.P.(C)No. 18956 of 2006

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 \026

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(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 whereof are as under :- "35G. Statement of case to High Court.-- (1) The Commissioner of Central Excise or the  other party may, within sixty days of the date upon  which he is served with notice of an order under  section 35C passed before the 1st day of July, 1999  (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 purposes of assessment), by application  in the prescribed form, accompanied, where the  application is made by the other party, by a fee of  two hundred rupees, require the Appellate Tribunal  to refer to the High Court any question of law  arising out of such order and, subject to the other  provisions contained in this section, the Appellate  Tribunal shall, within one hundred and twenty  days of the receipt of such application, draw up a  statement of the case and refer it to the High Court: Provided that the Appellate Tribunal may, if it is  satisfied that the applicant was prevented by  sufficient cause from presenting the application  within the period herein before specified, allow it  to be presented within a further period not  exceeding thirty days\005"

9.      The Finance Act of 2003, however, did away with the remedy of  reference to the High Court, altogether, except in the case of final orders  passed by the Tribunal on or before 1.7.2003.  Final orders passed after the  said date by reason of Section 144 of the Finance Act, 2003 were made   appealable to the High Court under an entirely substituted Section 35G,  whereas Section 145 of the Finance Act, 2003, amended  Section 35H of the  Act to restrict its applicability to Final Orders passed after 1.7.2003.  Section  35H as amended reads as under :-    "35H. Application to High Court.-- (1) The Commissioner of Central Excise or the  other party may, within one hundred and eighty

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days of the date upon which he is served with  notice of an order under section 35C passed *  [before 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 purposes of assessment), by application in the  prescribed form, accompanied, where the  application is made by the other party, by a fee of  two hundred rupees, apply to the High Court to  direct the Appellate Tribunal to refer to the High  Court any question of law arising from such order  of the Tribunal. (2) The Commissioner of Central Excise or the  other party applying to the High Court under sub- section (1) shall clearly state the question of law  which he seeks to be referred to the High Court  and shall also specify the paragraph in the order of  the Appellate Tribunal relevant to the question  sought to be referred.  (3) On receipt of notice that an application has  been made under sub-section (1), the person  against whom such application has been made,  may, notwithstanding that he may not have filed  such application, file, within forty-five days of the  receipt of the notice, a memorandum of cross- objections verified in the prescribed manner  against any part of the order in relation to which an  application for reference has been made and such  memorandum shall be disposed of by the High  Court as if it were an application presented within  the time specified in sub-section (1).  (4) If, on an application made under sub-section  (1), the High Court directs the Appellate Tribunal  to refer the question of law raised in the  application, the Appellate Tribunal shall, within  one hundred and twenty days of the receipt of such  direction, draw up a statement of the case and refer  it to the High Court." 10.     Similar problems have arisen in respect of the decisions rendered by  Tribunals constituted under different Acts, for example Income Tax Act.   We are also not unmindful of a catena of decisions rendered by some High  Courts that situs of the Tribunal is the determinative factor for reference  and/or appeal before the High Court. 11.     The question incidentally came up for consideration before a 5 Judge  Bench of this Court in Nasiruddin Vs. S.T.A. Tribunal AIR 1976 SC 331  wherein, inter alia, it was held :- "37. To sum up, our conclusions are as follows.  First, there is no permanent seat of the High Court  at Allahabad. The seats at Allahabad and at  Lucknow may be changed in accordance with the  provisions of the Order. Second, the Chief Justice  of the High Court has no power to increase or  decrease the areas in Oudh from time to time. The  areas in Oudh have been determined once by the  Chief Justice and, therefore, there is no scope for  changing the areas. Third, the Chief Justice has  power under the second proviso to paragraph 14 of  the Order to direct in his discretion that any case or  class of cases arising in Oudh areas shall be heard  at Allahabad. Any case or class of cases are those  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

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Oudh areas shall be instituted or filed at Allahabad  instead of Lucknow is wrong. The word "heard"  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 at Allahabad Bench according  to the cause of action arising wholly or in part  within either of the areas. If the cause of action  arises wholly within Oudh areas then the Lucknow  Bench will have jurisdiction. Similarly, if the  cause of action arises wholly outside the specified  areas in Oudh then Allahabad will have  jurisdiction. If the cause of action in part arises in  the specified Oudh areas and part of the cause of  action arises outside the specified areas, it will be  open to the litigant to frame the case appropriately  to attract the jurisdiction either at Lucknow or at  Allahabad. Fifth, a criminal case arises where the  offence has been committed or otherwise as  provided in the Criminal Proceduce Code. That  will attract the jurisdiction of the Court at  Allahabad or Lucknow. In some cases depending  on the facts and the provision regarding  jurisdiction, it may arise in either place."

12.     The said decision proceeded on the basis that part of the cause of  action may arise at the forum where the appellate order or the revisional  order is sourced.  If, thus, a cause of action arises within one or the other  High Court, the petitioner shall be the dominus litis.  Indisputably, if this set  of reasoning is to be accepted, the impugned judgment as also the decision  rendered in Bombay Snuff (supra) would not be correct.  Before dilating on  the said proposition of law it may be noticed that the decision of a Tribunal  would be binding on the Assessing Authority.  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. 13.     The Tribunal, as noticed hereinbefore, exercises jurisdiction over all  the three States.  In all the three States there are High Courts.  In the event,  the aggrieved person is treated to be the 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.  It will only be of persuasive value on the authorities  functioning under a different jurisdiction.  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.  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 thus he would be able to successfully evade the law laid down  by the High Court at Bombay. 14.     Furthermore, when an appeal is provided under a statute, Parliament  must have thought of one High Court.  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. 15.     In a case of this nature, therefore, the cause of action doctrine may not  be invoked. 16.     Sub-section 9 of Section 35G, whereupon Mr. C. Hari Shankar,

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learned counsel places strong reliance, in our opinion, does not answer the  question placed before us.  Learned counsel contends that in terms of sub- section 1 of Section 100 of the Code of Civil Procedure, the order of the  First Appellate Court being a decree, a Second Appeal shall lie before the  High Court subordinate thereto.  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 or if any cause of action has arisen therewithin 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, in our opinion, the High Court situated in the State where the first  court is located should be considered to be the appropriate appellate  authority.  Code of Civil Procedure did not contemplate such a situation.  It  provides for jurisdiction of each court.  Even a District Judge must exercise  its jurisdiction only within the territorial limits of a State.  It is inconceivable  under the Code of Civil Procedure that the jurisdiction of the District Court  would be exercisable beyond the territorial jurisdiction of the District, save  and except in such matters where the law specifically provides therefor.  18.     The submission of Mr. C. Hari Shankar, learned counsel, as noticed  hereinbefore, is inconsistent and contradictory.  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.  We may consider two hypothetical cases in order to  enable us to find out an answer.  A Tribunal may hear out a matter either at  Allahabad or at Bombay and pass a judgment at that place.  Only because  the head office is situated at Delhi, would it mean that a judgment delivered  at Allahabad or at Bombay would not attain its finality then and there.    19.    We may notice some incongruities if the contention of the appellant is  taken to its logical conclusion.  It is possible that in a case of emergency  while the Tribunal holding its sitting at Allahabad or Bombay may entertain  a matter where the cause of action had arisen at Delhi.  But that would not  mean that when the Tribunal pronounces its judgment at Allahabad or  Bombay, although the cause of action had initially arisen at Delhi, the Delhi  High Court would have no jurisdiction in relation thereto. 20.     The situs of a Tribunal may vary from time to time.  It could be Delhi  or some other place.  Whether its jurisdiction would be extending to 3 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, in our opinion, should be considered  only on the basis of statutory provisions and not anything else.  While  defining High Court in terms of Section 36B of the Act, the Parliament  never, in our opinion, contemplated to have a situation of this nature.   21.     An appeal may have to be filed by the Commissioner of Central  Excise.  His office may be located in a different State.  If he has to prefer an  appeal before the High Court, he would be put to a great inconvenience  whereas, the assessee would not be.  22.     We may, keeping in view the aforementioned backdrop, notice a few  decisions.  In Commissioner of Income Tax, Madras Vs. S. Sivaramakrishna  Iyer [AIR 1969 Mad 300], it was held :- "On that view, we think that where a Tribunal has  jurisdiction over more States than one, and it has  got to make a choice, in the absence of a statutory  provision, relating to the matter it must be guided  by the principles of Section 64, that is to say, the  place where the assessee carries on his business,  profession or vocation or resides. On that test, it is  the High Court of Kerala which will have  jurisdiction.  There is also another approach to the  question, namely, the subject-matter test As we  mentioned, the penalty proceedings were originally  initiated by the Income-tax Officer at Trichur and  it was because of a directive by Section 274(2) he

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made a reference to the Inspecting Assistant  Commissioner. But in effect, as we think, the  penalty proceedings are but a continuation of the  original assessment orders and the subsequent  proceedings started by the Income-tax Officer at  Trichur for levy of penalty. On that basis too, we  are inclined to think that this court will have no  jurisdiction under Section 66(2)."  23.    A Division Bench of Delhi High Court in Seth Banarsi Dass Gupta  Vs. Commissioner of Income Tax, 1978 (11) DLT 14, while construing  Section 66 of the Income Tax Act, 1922, held as under :- "The question then arises as to which High Court  the Delhi Bench could refer the questions of law  proposed in the applications under section 66(1) of  the Act.  The only relevant provisions in the Act are those in  Section 66. Section 66(1) merely states that within  the time mentioned therein, the assessee or the  Commissioner may require the Appellate Tribunal  to refer to "the High Court" any question of law  arising out of an order under Section 33, and that  the Appellate Tribunal shall within the time  prescribed in the sub-section draw up a statement  of case and refer the question to "the High Court"  Section 66(2) provides that if the Appellate  Tribunal refuses to state a case on an application  under Section 66(1) on the ground that no question  of law arises, the assessee or the Commissioner, as  the case maybe, may, within the time mentioned in  the sub-section, apply to "the High Court", and  "the High Court" if it is not satisfied with the  correctness of the decision of the Appellate  Tribunal, require the Appellate Tribunal to state  the case and refer it. Section 66(8) provides that  for the purposes of Section ’ 66, "the High Court"  means - (a) in relation to any State, the High Court  of the State, and (b) in relations to the Union  Territory of Delhi, the High Court of Delhi.  The aforesaid provisions do not clearly indicate to  which particular High Court the Appellate  Tribunal has to make a reference under Section  66(1) or which High Court can call for a reference  under Section 66(2), in a case where a Bench of  the Appellate Tribunal has jurisdiction over more  than one State."

24.    Referring to a judgment of Madras High Court, namely,  Commissioner of Income Tax Vs. S. Sivaramakrishna Iyer 1968 (70) ITR  860, the learned Judge opined :- "The said provisions show that in a case where a  reference is made to a High Court by a Bench of  the Appellate Tribunal under section 66 of the Act  the reference is just an intermediate stage, and the  case (appeal before the Bench) would be finally  disposed of by the Bench after receiving the  judgment of the High Court in the reference. So,  instead of adopting a different basis for that  intermediate stage, if would be quite appropriate to  adopt the same basis as the one adopted for  determining the jurisdiction of the Bench. Thus, it  would be appropriate and in consonance with the  aforesaid provisions of the Act and the Standing  Orders if the basis for the jurisdiction of the Bench  is adopted, instead of adopting the basis mentioned  in Section 64 of the Act, as suggested in the

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decision of the Madras High Court in the case.  Commissioner of Income-tax, Madars v. S.  Sivaramakrishna Iyer."    25.    Yet again in Suraj Woolen Mills Vs. Collector of Customs, 2000  (123) ELT 471 (Del), Lahoti, J. as the learned Chief Justice of India then  was, noticed the aforementioned decision as also other decisions operating in  the field and held :- "10. The Division Bench decision in the case of  Seth Banarsi Dass Gupta has been followed by  another Division Bench in Birla Cotton & Spg  Mills Ltd Vs. CIT Rajasthan (1980) 123 ITR 354.  The assessee carried on business in Jaipur. It had  its registered office in Delhi. The assessment  orders were passed by ITO at Jaipur and appeals  were disposed by the C at Jaipur. The matter came  up before the Tribunal at Delhi and was heard by  the Central Bench of the Income-tax Appellate  Tribunal as there was no Tribunal at Jaipur. The  Division Bench held that the court to which  reference should be made would be the court  having jurisdiction over the territory in which the  office of the ITO was situated. 11. Recently the same principle has been followed  by this Court in Suresh Desai & Associates Vs.  CIT [1991] 230 ITR 912. In this judgment, the  Divi- sion Bench has assigned yet another reason  why the High Court of that State wherefrom the  matter arises would only be competent to hear the  reference. A decision of one High Court is a  binding authority within its territorial jurisdiction;  but it is not a binding precedent for another High  Court or Tribunal outside its territorial jurisdiction.  The Division Bench has held as under :         "On account of the abovesaid doctrine of  precedents and the rule of binding efficacy of the  law laid down by the High Court within its  territorial jurisdiction, the questions of law arising  for decision in a reference should be determined by  the High Court which exercises territorial  jurisdiction over the situs of the Assessing Officer.  Else it would result in serious anomalies. An  assessee affected by an assessment order at  Bombay may invoke the jurisdiction of the Delhi  High Court to take advantage of the law laid down  by it and suited to him and thus get rid of the law  laid down to the contrary by the High Court of  Bombay not suited to the assessee. This cannot be  allowed." 12. Having made a careful comparative reading of  the provisions of the Income-tax Act and the  Customs Act, as also the relevant rules and orders  of the Tribunal we are unhesitatingly of the  opinion that the principles laid down in the  abovesaid three Division Bench decisions of Delhi  High Court can be applied and do apply to the  facts and circumstances of the present case. 13. The present case arises out of the State of  Bombay. The petitioner may have its factory  establishment at Panipat in the State of Haryana  but that is irrelevant. The adjudicating authority is  at Bombay. Obviously it is bound by the law laid  down under the provisions of the Customs Act or  any other law as interpreted by the High Court of  Bombay. For the purpose of the case at hand, the

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petitioner must be held bound by the law as  applicable and as prevailing in the State of  Mahrashtra whereat the goods were to be imported  and whereat the proceedings under the Act were  concluded. In the case at hand if the CEGAT  would have stated the case then the reference  would have been made to the High Court of  Bombay and in the event of the application for  statement of case having been refused it is the  High Court of Bombay which the petitioner should  have approached for issuing a requi- sition to the  Tribunal to state the case."

26.    In Commissioner of Central Excise, Delhi Vs. Enkay HWS India Ltd.  2002 (139) E.L.T. 21, Arijit Pasayat & D.K. Jain, JJ. in a case arising under  section 35H of the Central Excise Act opined :- "2. When the matter was placed for admission, we  pointed out to learned counsel for the petitioner  that this High Court does not have jurisdiction to  deal with the matter, in view of the decision of this  Court in Seth Banarsi Dass Gupta v.  Commissioner of Income Tax (Central) [1978  (113) ITR 817]. In the said case, white dealing  with the scope of entertaining reference under the  Income Tax Act, 1961 (in short, ’the I.T Act’), it  was observed that this High Court, that the State  within whose territorial jurisdiction original  adjudicating authority functions would have  jurisdiction to deal with the reference under the  concerned Statute. The view was again reiterated  in Suresh Desai and Associates v. Commissioner  of Income Tax [71 (1968) DLT 772]. That was  also a case under Section 256 (2) of the I.T. Act. In  a petition for reference arising under the Act in  Central Excise Case No. 5 of 1997 (Commissioner  of Central Excise v. Technological Institute of  Textile decided on 9-11-1998, it was held that the  High Court within whose jurisdiction adjudicating  authority functions would have territorial  jurisdiction to entertain the matter. We have also  expressed similar view in Central Excise Act Case  No. 7 of 2000 disposed of on 30-10-2000 taking  note of decision of the Apex Court in Stridewell  Leather (P) Ltd. v. Bhankerpur Simbhaoli  Beverages (P) Ltd. [AIR 1944 SC 158], while  dealing with the scope of expression "the High  Court" under Section 10F of the Companies Act,  1956 (in short, the Companies Act’). 3. We find no substance in the plea of learned  counsel for petitioner that site of the  Commissionerate or appellate authority determines  the jurisdiction in view of what has been stated in  the aforesaid decision."

27.    The said decisions were followed by the Division Bench of the High  Court of  Bombay in Bombay Snuff (supra) to hold:- "6. The only difference in the legal position that  existed at the time the above decision was rendered  and the position that prevails today is that instead  of the law envisaging a reference from the  Tribunal to the High Court, the law now provides  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

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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 that the appeal was  heard and decided at Delhi would not mean that all  appeals arising from cases so decided regardless  from Page 2522 which State the case has  originated can be maintained in this court."

28.    Before the High Court, the decision of this Court in Kusum Ingots &  Alloys Ltd. Vs. Union of India 2004 (168) ELT 3, wherein one of us was a  member, was strongly relied upon.  Therein, this Court while construing the  provisions of clause 2 of Article 226, held:- "25. The said decision is an authority for the  proposition that the place from where an appellate  order or a revisional order is passed may give rise  to a part of cause of action although the original  order was at a place outside the said area. When a  part of the cause of action arises within one or the  other High Court, it will be for the petitioner to  choose his forum."   29.   The decisions operating in the field, which have been taken note of in  Kusum Ingots & Alloys Ltd. (supra), would clearly go to show how the situs  doctrine had been given a go-bye by making constitutional amendments.  At  one point of time writ petitions against the Union of India were being filed  only before the Punjab & Haryana High Court as the said Court exercised  territorial jurisdiction over Delhi, which was the seat of the Central  Government.  Experiencing difficulties, clause 1A of Article 226 was  introduced.  The Constitution again underwent a change by way of insertion  of clause 2 of Article 226.  Bombay Snuff (supra) has been followed by  Karnataka High Court in Big  Apple Computers Vs. Commissioner of  Customs & Central Excise, Hyderabad 2007 (207) ELT 36, wherein it was  held :- "10. This judgment clearly applies to the facts of  this case. We also see a subsequent judgment of  the Delhi High Court 2006 (194) ELT 264. In the  said case, the High Court was considering as to  whether in terms of Section 35(G)3 of the Customs  Act the Delhi High Court could consider the  appeal, filed by the assessee. The tribunal in para 6  noticed as under; 6. The only difference in the legal position that  existed at the time the above decision was rendered  and the position that prevails today is that instead  of the law envisaging a reference from the tribunal  to the High Court, the law now provides 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 maintainable. On the reasoning  adopted by this amendment can be said to be so  maintainable. On the reasoning adopted by this

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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 that the  appeal was heard and decided at Delhi would not  mean that all appeals arising from cases so decided  regardless from which State the case has originated  can be maintained in this court."  

30.    In Nasiruddin (supra) and Kusum Ingots & Alloys Ltd. (supra), the  court was not dealing with a question of this nature.  Therefore, the same are  not authorities for the proposition that the High Court, which is situated at  the same place as the situs of the Tribunal, alone will have jurisdiction. If the  cause of action doctrine, as analysed hereinbefore is given effect to,  invariably more than one high Court may have jurisdiction, which is not  contemplated. 31.     The learned Solicitor General relies upon the decision in Stridewell  Leathers (P) Ltd. & Ors. Vs. Bhankerpur Simbhaoli Beverages (P) Ltd.  (1994) 1 SCC 34 wherein construing Section 10A vis-‘-vis Section 10F of  Companies Act, 1956, it was held that the High Court would mean the High  Court having jurisdiction in relation to a place at which the registered office  of the Company concerned is situated as indicated in Section 2(11) read with  Section 1A thereof. 32.     We are, however, of the view that in terms of the Companies Act, "the  High Court" was clearly intended to specify the particular High Court  identified by Section 10F itself, and therefore, it was held not to be a High  Court indicated by the place at which Company Law Board passes the order  under appeal. 33.     However, our attention has been drawn to Gurdit Singh & Ors. Vs.  Munsha Singh & Ors. AIR 1977 SC 640, wherein this Court opined that no  distinction could legitimately been drawn between the right to sue and cause  of action unless so indicated in the relevant statute.  Yet again in M/s. M.  Ramnarain Pvt. Ltd. & Anr. Vs. State Trading Corpn. Of India Ltd.  (1983)  3 SCC 75, a right to appeal was held to be carrying with it distinct cause of  action stating :-  

"It is his submission that in considering the  provisions of Order 23, Rule 1, the relevant fact to  be borne in mind is the subject matter of the appeal  and if the subject matter of the appeal be different,  as in the present case it is the earlier appeal No. 36  of 1981 being confined to the subject matter of  instalment and the subsequent appeal No. 44 of  1981 being against the decree on the merits of the  claim,\027the withdrawal of the earlier appeal  cannot, in any way, be a bar to the maintainability  of the subsequent appeal. Mr. Nariman has in this  connection referred to the decision of this Court in  Vallabhdas v. Dr. Madan Lal and Ors. in which  this Court "equated the meaning of the words  "subject matter" in Order 23 Rule 1 with the  meaning of the words "cause of action" in Order  23 Rule 2. Relying on this decision, Mr. Nariman  has argued that the "subject matter" of the appeal  within the meaning of Order 23, Rule 1, must be  considered in the light of the meaning of the words  "cause of action" in Order 2, Rule 2; and it is his  argument that as the "cause of action" in respect of  the claim for instalment is entirely different from  the "cause of action" in respect of decree which  embraces within its fold the ’subject matter" of the  respective claims of the parties in the suit, the  withdrawal of the earlier appeal No. 36 of 1981

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against the instalments cannot in any way affect  the maintain ability of the appeal No. 44 of 1981  against the decree on the merits of the claim.  Mr.  Nariman has next contended that the provisions of  Order 2, Rule 2 of the Civil Procedure Code do not  in any way affect the maintainability and the  merits of the present appeal No. 44 of 1981. He  has submitted that the said provisions have no  application to an appeal and in any event, the cause  of action and the subject matter of the present  appeal are entirely different from the cause of  action and the subject of the earlier appeal.

34.    As against this, the submission of the learned Attorney General was as  under: "It is his argument that the right of appeal which is  no doubt a statutory right will also necessarily be  governed by the provisions of Order 2, Rule 2 and  as the appeal is filed not against the entire subject  matter of appeal arising out of the cause of action  in the appeal, the right to file another appeal  against the decree is clearly lost."

35.    Accepting Mr. Nariman’s submissions, this Hon’ble Court ruled thus:

"Even if the principles underlying Order 2, Rule 2  can be considered to apply to an appeal, the  maintainability of the instant case cannot be held  to be affected in any way as the cause of action in  respect of the present appeal is entirely different  from the cause of action on the basis of which the  earlier appeal had been filed."  (Emphasis  supplied)

36.    In that case the jurisdiction of the High Court was not to be  determined in order to give effect to the doctrine of ’cause of action’  envisaged under the Code of Civil Procedure.

37.     However, we are not oblivious of another line of authority where the  situs of the Tribunal was held to be the basis for determination of the  jurisdiction of the High Court.  In the said decisions, however, the  contentions which have been raised before us did not arise for consideration.

38.    We have noticed hereinbefore that if the decision of the High Court in  the aforementioned question is taken to its logical conclusion, the same  would lead to a great anomaly.  It would also give rise to the problem of  forum shopping.  We may notice some examples to show that the  determination of the appellate forum based upon the situs of the Tribunal  would lead to an anomalous result.  For example, ’an assessee affected by an  assessment order in Bombay may invoke the jurisdiction of the Delhi High  Court to take advantage of the law laid down by it which may be contrary to  judgments of the High Court of Bombay.  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].

39.     Section 20(c) of the Code of Civil Procedure reads as under:

"20. Other suits to be instituted where defendant  reside or cause of action arises. Subject to the  limitation aforesaid, every suit shall be instituted in  a court within the local limits of whose  jurisdiction\026 (c) the cause of act5ion, wholly, or in part, arises."  

40.     Although in view of Section 141 of the Code of Civil Procedure the

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provisions thereof would not apply to writ proceedings, 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 this Court rendered on  interpretation of Section 20(c) of CPC shall apply to the writ proceedings  also.  Before proceeding to discuss the matter further it may be pointed out  that 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.  The expression material facts is also known as integral  facts. 41.     Keeping in view the expression "cause of action" used in clause (2) of  Article 226 of the Constitution of India, 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. 42.     In Mussummat Chand Kour V. Partap Singh (15 1A 156), it was  held:-

"....the cause of action has no relation whatever to  the defence which may be set up by the defendant,  nor does it depend upon the character of the relief  prayed for by the plaintiff.  It refers entirely to the  ground set forth in the plaint as the cause of action,  or, in other words, to the media upon which the  plaintiff asks the court to arrive at a conclusion in  his favour."            For the reasons aforementioned, we are of the opinion that the High  Court was correct in its view.  These appeals, therefore, being devoid of any  merit, deserve to be dismissed.  However, in the facts and circumstances of  this case, there shall be no order as to costs.