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2006 DIGILAW 58 (CAL)

SHRINARESH GOEL v. COMMISSIONER OF CUSTOMS, PATNA

2006-02-02

BHASKAR BHATTACHARYA, PRAVENDU NARAYAN SINHA

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BHASKAR BHATTACHARYA, J. ( 1 ) THIS appeal under Section 130 of the Customs Act (hereinafter referred to as the Act) is at the instance of an appellant before the customs Excise and Service Tax Appellate Tribunal, Eastern Regional Bench, kolkata and is directed against the order dated 16th July, 2004 passed by the said Tribunal thereby affirming the order of the Commissioner of Customs, Patna, imposing a personal penalty of Rs. 10,00,000/- (ten lakh) on the present appellant in the capacity of a partner of M/s. Prakash Transport under the provision of section 114 of the Act. ( 2 ) IT appears from the record that the Preventive Officer of Raxaul customs, on the basis of information through source seized two monolithic rock statues of antic nature and on the allegation that those were in the process of smuggling out of India, initiated proceedings against different persons and ultimately, passed not only the order of confiscation of those two idols but also of personal penalty upon different persons including present appellant. ( 3 ) BEING dissatisfied, all the aforesaid persons preferred different appeals before the Appellate Tribunal situated at Kolkata and by the order impugned herein although appeals preferred b'y the other aggrieved persons were allowed, the onapreferred by the appellant before us was dismissed and the order of imposition of personal penalty against him was affirmed. ( 4 ) BEING dissatisfied, the appellant has come up before this Court under section 130 of the Act. ( 5 ) AT the very outset, a preliminary question has arisen as to the maintainability of the present appeal before this Court. ( 6 ) THE question that falls for preliminary determination is that the personal penalty having been imposed by an authority under Section 114 of the customs Act situated in the State of Bihar, whether the present appeal is maintainable before this Court merely because the seat of Appellate Tribunal against the original order is located within the territorial limit of this Court. ( 7 ) MR. ( 7 ) MR. Samaddar, the learned Advocate appearing on behalf of the respondent, has, in this connection, placed strong reliance upon a Division bench decision of Delhi High Court in the case of Suraj Woollen Mills v. Collector of Customs, Bombay reported in 2000 (123) ELT page 471 and also upon two decisions passed by a learned Single Judge of this Court (one of us) in the cases of Jension and Nicholson v. Industrial Investment Bank of India Ltd. and navin v. State Bank of India reported in (2002)1 Cal LJ 219 : (2002)1 WBLR (Cal) 412 and (2002)2 Cal HN 294 respectively in support of his contention that this Court has no territorial jurisdiction to entertain this appeal. ( 8 ) MR Banerjee, the learned senior Advocate appearing on behalf of the appellant, however, opposed the aforesaid contention of Mr Samaddar and contended that the appellate authority being stationed within the territorial limit of this Court, the order of the original authority merged with the order of the appellate authority and as such, his client was entitled to challenge the merged order of the Appellate Tribunal before this Court which has territorial jurisdiction over the Appellate Tribunal In support of such contention Mr Banerjee relies upon a decision of the Supreme Court in the case of M/s Kusum Ingots v Union of India reported in AIR 2004 Supreme Court page 2321 ( 9 ) BEFORE entering into the aforesaid question, it will not be out of place to mention here that the Appellate Tribunal involved in this case functions not only for the purpose of exercising jurisdiction over the authority situated in the state of Bihar but also over the Customs Authorities of the state of West Bengal, jharkhand, Assam, Orissa, etc situated in the eastern region of this country and for the above purpose it has the seat in Kolkata for the sake of convenience of the litigants ( 10 ) AT this stage we must bear in mind that the appellant has moved this Court not under the provisions of Article 226 of the Constitution but specifically under Section 130 of the Act According to Article 226 of the Constitution, even though the cause of action for moving a writ application arises wholly outside the territorial limit of a High Court, such Court can entertain an application under that provisions if the action or the inaction of a person, authority or in appropriate cases, a Government, who can be described as a "state" within the meaning of article 12 of the Constitution of India has affected the legal or fundamental right of a person provided the offending person, authority or the Government has its seat within the territorial limit of that Court However, if a High Court is approached under Article 227 of the Constitution of India for correction of an order passed by an Appellate Tribunal situated within the territorial limit of that Court, the High court can exercise its power of superintendence only if such Appellate Tribunal was scrutinizing an order of an authority over which such High Court has the power of superintendence If the original authority against whose order the tribunal was moved, functions beyond the territorial limit of a High Court, such court cannot entertain the prayer of exercising the power of superintendence even though the appellate authority functions from a place within the territorial limit of the said High Court ( 11 ) IN this case, the personal penalty upon the appellant was imposed by the Customs Authority of the Bihar over which this Court has no power of superintendence and therefore, this Court cannot entertain this appeal merely because the Appellate Tribunal against such order has its seat in Kolkata for the administrative convenience as the said Tribunal also functions as such against the original authorities of other states including the State of West Bengal Under the Act, a High Court exercises its authority by virtue of its power of superintendence conferred under Article 227 of the Constitution of India We, therefore, hold that the word "high Court" appearing in Section 130 of the Act means that High Court which has the power of superintendence over the original authority whose order is the subject matter before the Appellate Tribunal and that the seat of the Appellate Tribunal is inconsequential for the purpose of deciding such question Therefore, this appeal under Section 130 of the Act cannot be entertained by this Court ( 12 ) IN the case of M/s Kusum Ingots (supra), the Apex Court was considering the question of the territorial jurisdiction of a High Court in the matter of entertaining a writ application under Article 226 of the Constitution of India for the purpose of challenging the validity of the statute enacted by the Parliament in that context, that Court held that when an order is passed by a Court or tribunal or an executive authority whether under the provisions of a statute or otherwise, a part of cause of action arises at that place Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places in other words, the Supreme Court proceeded, as order of the appellate authority constituted a part of cause of action, a writ petition would be maintainable in the high Court within whose jurisdiction the appellate authority is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority ( 13 ) WE have already pointed out that there is a marked difference of language used in Article 226 from those used in Article 227 and as such, the principles laid down in the case of M/s Kusum Ingots (supra), cannot have any application to the case before us Such difference of language has been discussed in details in the case of Jension and Nicholson (supra) and Navin v State Bank of India (supra) relied upon by Mr Samaddar and we propose to follow those decisions in the facts of our case ( 14 ) WE, therefore, find that this appeal should fail for want of territorial jurisdiction and we, accordingly, dismiss it on that ground alone without entering into the merit of the same no costs.