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CASE NO.: Appeal (civil)  5153 of 2007

PETITIONER: M/s Canon Steels P. Ltd

RESPONDENT: Commissioner of Customs

DATE OF JUDGMENT: 12/11/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.   5153               OF 2007   Arising out of SLP (Civil) No.7645 of 2007  

Dr. ARIJIT PASAYAT, J.  

1.      Leave granted.

2.      Challenge in this appeal is to the orders passed by the  Punjab & Haryana High Court dismissing the Customs Act  Appeal No.4/2004, filed under Section 130 of the Customs  Act, 1962 (in short the ’Act’) dated 8th May, 2006, and the  order passed in review application dated 12.10.2006. The High  Court held that it had no jurisdiction to deal with the matter  as the original order was passed by Adjudicating authority at  Mumbai and the appellate order was passed at Delhi by the  Customs, Excise and Service Tax Appellate Tribunal (in short  ’CESTAT’).  Reference was made to the decision of this Court  in Kusum Ingots & Alloys Ltd. V. Union of India and Anr.  (2004 (6) SCC 254).

3.      In support of the appeal, learned counsel for the  appellant submitted that the judgment in Kusum Ingots  (supra) is in favour of the appellant and on misreading of the  decision the appeal has been dismissed.  Learned Additional  Solicitor General, on the other hand, submitted that before  moving the Punjab and Haryana High Court, the Delhi High  Court was moved, and at the request of the appellant, the  High Court permitted to withdraw the appeal (wrongly stated  as writ petition).

4.      The factual position is not in dispute. The adjudication  order under the Act was passed by the Commissioner of  Customs (EP Mumbai) and the appeal against that order was  adjudicated by CESTAT. Against the order of CESTAT,  Customs Appeal No.6/04 was filed before the Delhi High  Court. It is submitted by learned counsel for the appellant that  prima facie, the High Court was of the view that the appeal  was not maintainable before it and, therefore, the appellant  withdrew the said appeal to file it before the appropriate High  Court.  Since the cause of action arose at Chandigarh it was  submitted that the Punjab and Haryana High Court has  jurisdiction.                  5.      At this juncture, it would be appropriate to take note of  what has been stated by this Court in Kusum Ingots (supra).   

6.      The Court must have the requisite territorial jurisdiction.

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An order passed on a writ petition questioning the  constitutionality of a Parliamentary Act, whether interim or  final keeping in view the provisions contained in clause (2) of  Article 226 of the Constitution of India, will have effect  throughout the territory of India subject of course to the  applicability of the Act.    7.      Learned counsel for the appellant in support of his  argument would contend that the situs of framing law or rule  would give jurisdiction to the Delhi High Court and in support  of the said contention relied upon the decisions of this Court  in Nasiruddin v. STAT  (1975 (2) SCC 671), and U.P. Rashtriya  Chini Mill Adhikari Parishad v. State of U.P. (1995 (4) SCC 738).  So far as the decision of this Court in Nasiruddin’s case  (supra)  is concerned, it is not an authority for the proposition  that the situs of legislature of a State or the authority in power  to make subordinate legislation or issue a notification would  confer power or jurisdiction on the High Court or a Bench of  the High Court to entertain a petition under Article 226 of the  Constitution. In fact, this Court while construing the  provisions of the United Provinces High Courts  (Amalgamation) Order, 1948 stated the law thus: (SCC p.    683, para 37)  "37 . The conclusion as well as the reasoning  of the High Court is incorrect. It is unsound  because the expression ’cause of action’ in an  application under Article 226 would be as the  expression is understood and if the cause of  action arose because of the appellate order or  the revisional order which came to be passed  at Lucknow then Lucknow would have  jurisdiction though the original order was  passed at a place outside the areas in Oudh. It  may be that the original order was in favour of  the person applying for a writ. In such case an  adverse appellate order might be the cause of  action. The expression ’cause of action’ is well  known. If the cause of action arises wholly or  in part at a place within the specified Oudh  areas, the Lucknow Bench will have  jurisdiction. If the cause of action arises wholly  within the specified Oudh areas, it is  indisputable that the Lucknow Bench would  have exclusive jurisdiction in such a matter. If  the cause of action arises in part within the  specified areas in Oudh it would be open to the  litigant who is the dominus litis to have his  forum conveniens. The litigant has the right to  go to a court where part of his cause of action  arises. In such cases, it is incorrect to say that  the litigant chooses any particular court. The  choice is by reason of the jurisdiction of the  court being attracted by part of cause of action  arising within the jurisdiction of the court.  Similarly, if the cause of action can be said to  have arisen part within specified areas in  Oudh and part outside the specified Oudh  areas, the litigant will have the choice to  institute proceedings either at Allahabad or  Lucknow. The court will find out in each case  whether the jurisdiction of the court is rightly  attracted by the alleged cause of action."            8.     The said decision is an authority for the proposition that  the place from where an appellate order or a revisional order is

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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.  9.      We must, however, remind ourselves that even if a small  part of cause of action arises within the territorial jurisdiction  of the High Court, the same by itself may not be considered to  be a determinative factor compelling the High Court to decide  the matter on merit. In appropriate cases, the Court may  refuse to exercise its discretionary jurisdiction by invoking the  doctrine of forum conveniens. [See Bhagat Singh Bugga v.  Dewan Jagbir Sawhney (AIR 1941 Cal 670), Madanlal Jalan v.  Madanlal (AIR 1949 Cal 495), Bharat Coking Coal Ltd. v. Jharia  Talkies & Cold Storage (P) Ltd. (1997 CWN 122) , S.S. Jain &  Co. v. Union of India (1994 (1) CHN 445) and New Horizons Ltd.  v. Union of India (AIR 1994 Del 126.]  

10.     The appellate order in this case was issued from CESTAT  office at New Delhi.  In that sense the Delhi High Court has  jurisdiction to deal with the matter in terms of what has been  stated in paragraph 25 of Kusum Ingot’s case (supra).

11.     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 no person should be left without a remedy,  therefore, even though the Customs Case No.6/04 was  withdrawn by the assessee, we direct the restoration of the  said as undisputably, the Delhi High Court has jurisdiction to  deal with the matter.        12.     Customs Case No.6/04 in the Delhi High Court needless  to say shall be dealt with on merits.

13.     We make it clear that we have not expressed any opinion  on the merits of the appeal.   

14.     The appeal is accordingly disposed of without any order  as to costs.