An important question of law has recently came up for hearing before the Bombay High Court as to whether the appeals arising under Section 130 of the Customs Act, 1962, and Section 35 G of the Central Excise Act, 1944, from the orders of the Tribunal at Mumbai, can be presented and heard before the principal seat of the High Court, even when the impugned order of the Tribunal arises out of places which are allotted to the Benches at Nagpur and Goa.
A division bench of Justice MS Sanklecha and Justice Riyaz Chagla held the answer to be in the negative and stated that the tax appeals are to be filed before the bench allotted to the district where the dispute arose, not the principal bench.
Facts of the case
The court was hearing five appeals, three of them under Section 130 of the Customs Act, 1962 (Customs Act) and two of them under Section 35G of the Central Excise Act, 1944 challenging individual orders passed by the Customs Excise and Service Tax Appellate Tribunal, Mumbai.
The Department of Revenue objected to hearing of these appeals at the principal seat of this court at Mumbai, as the order in appeals arisen out of dispute emanating from the districts which have been allotted the benches of the court.
Ratio Decidendi of the case
The appellants brought to the notice of the court two High Court’s decision in Vinar Ispat Ltd. v. Commissioner of Central Excise and Facor Steel v. Commissioner of Central Excise.
The court observed that these decisions were rendered before the insertion of an amendment to the appellate side rules, Chapter XXIV-A on October 27, 2014, and thus the court had no occasion to consider and deal with it.
“The amendment clearly restricts the filing of tax appeals before the appellate side of the Principal bench of this Court to only such appeals from orders of the Tribunal which arise out of the specified districts therein. Therefore, it is no longer the situs of the Tribunal which decides which of the benches or the principal seat of this Court to which an appeal lies but the place where the dispute arose,” the court said.
Further, the court observed that “it is a settled position in law that the practice of the Court is the law of the Court. In fact, the Supreme Court in Collector of Central Excise v. Standard Motors Products had while refusing to interfere with the practice of the Court relied upon the maxim “Cursus curiae est lex curiae” i.e. practice of the Court is the law of the Court. In this case the Appellate Side Rules is the published Rules making it known to all concerned that the manner in which this Court has distributed the work amongst its benches (including the principal seat). Therefore, these Rules are higher than any unwritten practice and have to be followed by those who seek to challenge order of the Tribunal passed at Mumbai in respect of Excise and Customs appeals. Thus, in terms of the Appellate Side Rules, the appeals have to be presented at that bench (including the principal seat) which has been allocated the place where the dispute has arisen and not the place where the appellate authority is situated.”