CESTAT Bar Association Vs. M/S Om Shiv Transport (Allahabad High Court)
Allahabad High Court on an application filed by CESTAT Bar Association, Allahabad (Writ Tax No. 354 of 2015) has stayed the operation of the Notification dated 10-10-2017 providing for transfer of appeals from CESTAT Regional benches to the CESTAT bench at Delhi with the consent of the parties on the plea that such notification is without authority of law as the CESTAT cannot change the jurisdiction which is already carved out by the Union Cabinet and moreover, consent of parties does not confer jurisdiction.
Full Text of the High Court Judgment / Order is as follows:-
Heard Sri Nishant Mishra, learned counsel for the applicant, Sri Gautam Chaudhary, learned counsel for the Registrar CESTAT, respondent no. 2, Sri Ashok Mehta, learned senior counsel assisted by Sri B.K.S. Raghuvanshi, learned counsel for the respondent no. 1 and learned Standing Counsel for respondent no. 6.
This is an intervernor’s application filed under Order 1 Rule 8A read with Section 151 CPC on behalf of the Customs Excise and Service Tax Appellate Tribunal Bar Association through its President.
It is to be noted that pursuant to a decision of the Union Cabinet a Notification No. 7/2013 dated 1.11.2013 was issued for setting up the Benches of CESTAT at Allahabad, Chandigarh, Mumbai, New Delhi and Chennai. Since the aforesaid Notification was not being implemented the petitioner M/s.Om Shiv Transport filed a writ petition seeking enforcement of the aforesaid Notification. While entertaining the writ petition the following interim order was passed:
” In paragraph 5 of the affidavit the Registrar has stated that the jurisdiction of the Bench at Allahabad is yet to be notified by the President CESTAT (under Section 129C of the Customs Act, 1962 (52 of 1962) read with Section 35D of the Central Excise Act 1944 (1 of 1944), Section 86 of the Finance Act, 1994, Section 9C of the Customs Tariff Act, 1975.
In this regard, we find that the Government of India, Ministry of Finance, Department of Revenue has issued a notification dated 01.11.2013, which has been issued under the Central Excise Act, 1944, the Customs Act, 1962 and Chapter V of the Finance Act, 1994 notifying the creation of a Bench of Customs, Excise and Service Tax Appellate Tribunal at Allahabad, pursuant to which a communication dated 13.11.2013 was issued to the Registrar, Customs, Excise and Service Tax Appellate Tribunal, New Delhi intimating the creation of the new Bench at Allahabad having jurisdiction to hear the appeals arising out from U.P., which is to be carved out from Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal. The creation of the Bench and the jurisdiction of this Bench at Allahabad has been done by the Union Cabinet by its decision dated 24.10.2013. This creation of Bench prima facie appears to be in exercise of the powers under Section 129 of the Customs Act, 1962. Once this is done, we fail to understand as to how the Registrar of Customs, Excise and Service Tax Appellate Tribunal, New Delhi contend in paragraph 5 of the affidavit that the jurisdiction at Allahabad is yet to be notified under Section 129C of the Customs Act, 1962, which only gives the power to the Appellate Tribunal to regulate its own procedure. Once the Bench has been created and the place has been notified nothing further else is required to be done. It is admittedly, clear that the Registrar under the garb of some representation given by the Indirect Tax Bar Association is not allowing the functioning of the Bench at Allahabad for vested reasons.
We, accordingly, direct the Registrar posted at Customs, Excise and Service Tax Appellate Tribunal, New Delhi to be present before this Court on 20.08.2015 along with an affidavit explaining the circumstances and the constraints in commissioning the functioning of the Bench at Allahabad”.
After the aforesaid interim order, the Bench at Allahabad was established vide order dated 14.8.2015 and a circular was issued directing that with effect from 1.9.2015 all the appeals/applications originating out of the State of Uttar Pradesh shall be filed at Allahabad. Since then the CESTAT, Allahabad has been established in a Building and is functioning and deciding the appeals.
Surprisingly, without any authority of law, the Registrar by the impugned Notification dated 10.10.2017 has passed an order that in all such appeals when both the parties to the appeal agree, the matter can be transferred and heard at the Principal Bench, New Delhi subject to the approval of the President. The intervenor, who is the CESTAT Bar Association are aggrieved by the aforesaid order stating that once the Union Cabinet has created, by Notification, a Bench at Allahabad to hear appeals arising from U.P., no such direction can be given to transfer such appeals in exercise of power under Section 129 of the Customs Act.
It appears that while passing the order, the Registrar has also decided to change the jurisdiction of a particular Bench of the Tribunal allotted to it through Union Gazettee Notification.
It is to be remembered that the Gazettee Notification has been issued creating a Bench at Allahabad by carving out the jurisdiction from Delhi, as such the Registrar has no power to create any further jurisdiction apart from what has been created by the Gazettee Notification. A jurisdiction of the Bench can not, under any circumstances, be conferred merely upon the consent of the parties.
Learned counsel for the petitioner has relied upon the relevant portion of the decision of the Madras High Court in the case of Areva T & D India Ltd. vs. Commissioner of Customs (Exports), Mumbai 2013 (296) ELT 453 (Mad.). Paragraph Nos. 22 and 23 are relevant, which are quoted herein-below:
“(22) Though Section 129C(6) gives power to regulate its own procedure, the said provision does not expressly confer power on the Appellate Tribunal to transfer matter on administrative side. The Appellate Tribunal is deemed to be a Civil Court. Therefore, transfer of proceedings from one Bench to another Bench situated in a different State, can be made only by way of a judicial order. The present case is not a transfer from one Bench to another bench functioning in the very same State. In case there are two or more Benches in a particular State, it is always open to the Appellate Tribunal to transfer a particular matter from one Bench to another in case it is made out that the other Bench is not functioning or for any other justifiable reason.
(23) The Tribunal at Mumbai is bound by the law declared by the Bombay High Court. The Tribunal at Madras is expected to decide the matters on the basis of the law laid down by the Madras High Court. Therefore, the Appellate Tribunal cannot transfer matters in a casual manner on administrative side without deciding the issue judicially.”
We have considered the submissions of the learned counsel for the applicant and the learned counsel for the respondents.
We have given our careful consideration to the arguments raised by the learned counsel for the parties.
Let a counter affidavit be filed by the respondents for which one month time, as prayed for, is allowed.
List this case after the expiry of the aforesaid period.
Until further orders of this Court, the operation of the impugned order dated 10.10.2017 passed by the Registrar, CESTAT shall remain stayed so far as it relates to Allahabad Bench of CESTAT.