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2006 DIGILAW 772 (CAL)

VARIAN INDIA PRIVATE LIMITED v. UNION OF INDIA

2006-12-07

BHASKAR BHATTACHARYA, PRABUDDHA SANKAR BANERJEE

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BHASKAR BHATTACHARYA, J. ( 1 ) THIS appeal under section 130 of the customs Act is at the instance of an appellant before the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata (hereinafter referred to as the Tribunal) and is directed against order dated July 5, 2006 passed by the Tribunal in Miscellaneous Application (RET) No. 200 of 2005 thereby rejecting an application for retention of an appeal preferred against the order of the Commissioner of Customs (Appeals) Mumbai -. ( 2 ) BEING dissatisfied with an order dated November 30, 2004 passed by the Commissioner of Customs (Appeals) Mumbai-II, the appellant herein preferred an appeal before the Tribunal in Kolkata by taking benefit of the notification No. 5 of 1995 dated May 31, 1995 issued in exercise of the power conferred under section 129c of the Customs Act, 1962 which permitted an exporter or importer to file appeal with the Bench within whose jurisdiction the office of such importer or exporter was located or where he normally resided. ( 3 ) HOWEVER, on August 5, 2005 a subsequent notification was issued being no. 2 of 2005 by virtue of which the previous notification was superseded and on reconsideration of the matter and in supersession of all the existing orders, it was ordered that the cases arising within the jurisdiction of the zonal Benches should be filed and heard before the respective Zonal Benches. It was pointed out in the said notification that the previous practice of permitting filing of appeal in any of the Zonal Benches as per the earlier notification had not proved conducive for smooth running of the administration and accordingly, it was ordered that the cases arising within the jurisdiction of a particular Zonal Bench should be filed and heard before the respective Zonal Bench. ( 4 ) THE appellant before us filed an application before the Tribunal praying for retention of its appeal on the ground that the said appeal having been preferred prior to the issue of the notification dated August 5, 2005, the said notification had no effect over the appeal filed by the appellant. ( 4 ) THE appellant before us filed an application before the Tribunal praying for retention of its appeal on the ground that the said appeal having been preferred prior to the issue of the notification dated August 5, 2005, the said notification had no effect over the appeal filed by the appellant. ( 5 ) BY the order impugned herein, the learned Tribunal has overruled such plea taken by the appellant and has decided not to retain the said appeal before the Tribunal, as in normal course, it had no jurisdiction to entertain an appeal arising out of the order of the Commissioner, Mumba. ( 6 ) BEING dissatisfied, the appellant has come up with the present appeal under section 130 of the Customs Act. ( 7 ) THEREFORE, the only question that arises for determination in this appeal is whether the Tribunal was entitled to hear the appeal filed before it by virtue of the earlier notification which has since been superseded by the appropriate authority. ( 8 ) MR. Chowdhury, the learned Counsel appearing on behalf of the appellant, laboriously contended before us that the said notification dated 5th August, 2005 cannot have any application to an appeal already filed before the Tribunal by virtue of the earlier notification and as such, the Tribunal refused to exercise jurisdiction vested in it by the law by not retaining the appeal in its file. In other words, Mr. Choudhury contended that the notification dated 5th August, 2005 cannot have any retrospective operation. ( 9 ) AFTER hearing Mr. Chowdhury, the learned Counsel appearing on behalf of the appellant and after going through the materials on record, we find that the Notification No. 5 of 1995 was issued in exercise of the power conferred under section 129c of the Customs Act and but for such notification, the Tribunal at Kolkata could not get jurisdiction to entertain the appeal in question against the order of the Commissioner posted at Mumba. The moment such notification has been withdrawn by the subsequent Notification no. 5 of 2005 by superseding the earlier one, the Tribunal at Kolkata will automatically lose the jurisdiction to proceed with the appeal any further and the appeal will continue as if the Notification No. 5 of 1995 was not issued. Therefore, the Tribunal rightly refused to retain the appeal any further. 5 of 2005 by superseding the earlier one, the Tribunal at Kolkata will automatically lose the jurisdiction to proceed with the appeal any further and the appeal will continue as if the Notification No. 5 of 1995 was not issued. Therefore, the Tribunal rightly refused to retain the appeal any further. We are unable to accept the contention of Mr. Chowdhury that the said notification cannot have any application to the pending appeals. Unless in the superseding notification, it is specifically mentioned that the pending appeals can be disposed of by the Tribunals which got jurisdiction by virtue of the Notification No. 5 of 1995 notwithstanding the subsequent notification, the Tribunal in Kolkata cannot decide the said appeal after its authority is taken away. ( 10 ) WE, thus, find no merit in this appeal and accordingly, the same is dismissed. ( 11 ) IN the facts and circumstances there will, however, be no order as to costs. ( 12 ) WE, however, make it clear that this order will not stand in the way of the appellant in approaching the Chairman of the Tribunal for special transfer in accordance with law. Appeal dismissed.