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2007 DIGILAW 2016 (DEL)

Suresh Enterprises v. Union of India

2007-12-13

S.MURALIDHAR, SUDERSHAN KUMAR MISRA

body2007
JUDGMENT S. Muralidhar, J. CM No. 16830/2007 Exemption allowed subject to all just exceptions. WP(C) 8911/2007 & CM No. 16829/2007 1. The challenge in this writ petition under Article 226 of the Constitution is to an order dated 12th December, 2006 passed by the Additional Director General of Foreign Trade (ADGFT), Department of Commerce, Ministry of Commerce and Industry, New Delhi. 2. By the impugned order, an order passed by the Joint Director General of Foreign Trade, Mumbai (JDGFT) was set aside and the case remanded to the JDGFT, Mumbai for de novo consideration. 3. On the previous date of hearing, i.e., 4th December 2007, we had requested learned Counsel for the Petitioner to address us on the question of the maintainability of this petition in this Court since the proceedings emanated from the order passed by the JDGFT, Mumbai. At the request of learned Counsel for the Petitioner, this matter was adjourned for today. 4. Mr. C. Hari Shankar, learned Counsel appearing for the Petitioner submits that this Court and only this Court, has jurisdiction to deal with this matter. He first relies upon the judgment of the Supreme Court in Kusum Ingots and Alloys Limited v. Union of India 2004 (168) ELT 3 and in particular paras 24 and 25 thereof. Secondly, he relies upon the judgment of the learned Single Judge of this Court in Select Impex Limited v. Union of India : 2006(194) ELT 146 (Del) . Thirdly, he submits that the grievance is only insofar as the impugned order dated 12th December, 2006 is concerned and that since the impugned order was passed in Delhi, only this Court has the territorial jurisdiction to hear and decide this petition. 5. We are not agree with the contentions of the learned Counsel for the Petitioner. There was an earlier round of litigation to which the assessed was party which culminated in a judgment dated 3rd May, 2005 passed by a Division Bench of the Bombay High Court in First Appeal No. 734 of 2005 Suresh Enterprises v. Commissioner of Customs reported in 2005 (69) RLT 1 . There was an earlier round of litigation to which the assessed was party which culminated in a judgment dated 3rd May, 2005 passed by a Division Bench of the Bombay High Court in First Appeal No. 734 of 2005 Suresh Enterprises v. Commissioner of Customs reported in 2005 (69) RLT 1 . The operative portion of that judgment indicates that while setting aside the orders of the Deputy Commissioner (Appeals) and the Customs, Excise and Service Tax Appellate Tribunal, the matter was remanded by the Bombay High Court to the DGFT with the direction that the DGFT will decide the claim of the Petitioner on merits and in accordance with law. 6. It is submitted that thereafter, the DEPB license was in fact restored to the Petitioner. However, subsequently, on 7th February, 2006 the Zonal JDGFT issued a show cause notice to the Petitioner seeking to cancel the DEPB license. That is how the present round of litigation has commenced. 7. Against the order passed by the Zonal JDGFT the Petitioner preferred an appeal in which the ADGFT passed the impugned order dated 12th December, 2006. 8. The question is not whether this Court under Article 226 has the jurisdiction to entertain this petition but given the facts of a particular case, and considering where the substantial cause of action has arisen, whether this Court should exercise its jurisdiction. The law is fairly well settled that where a Petitioner is not without an equally efficacious remedy in another Court, that would certainly be a reason for declining to exercise jurisdiction. We are clear that on the facts of the present case the Petitioner has an equally efficacious remedy before the Bombay High Court, and should approach that Court. That the Petitioner itself approached that High Court earlier is another factor that weighs with us. 9. We may in this context refer to para 30 of the judgment of the Supreme Court in Kusum Ingots & Alloys Limited which reads as under: 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. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (see Bhagar Singh Bagga v. Dewan Jagbir Sawhany AIR 1941 Cal.; Mandal Jalan v. Madanlal (1945) 49 CWN 357; Bharat Coking Coal Limited v. Jharia Talkies and Cold Storage Pvt. Limited (1997) CWN 122; S.S. Jain and Co. v. Anr. V. Union of India and Ors., (1994) CHN 445; New Horizon Limited v. Union of India : AIR 1994 Delhi 126 ). 10. In view of the above enunciation of the law by the Supreme Court which is binding on us, we are not inclined to entertain this petition. We however, grant the Petitioner the liberty to approach the appropriate High Court for redressal of its grievance. 11. With the aforesaid observations and liberty, this writ petition and the pending application are dismissed. Petition dismissed.