Dilip Kumar Seth, J. - (1.) The Subject: The proceeding under the Excise Act was initiated under Section HA against the petitioner company having its office at Calcutta in respect of certain excise duty payable on account of certain transactions carried out at Raipur and Nagpur Units of the Company.
(2.) The writ petitioner had contested the said proceeding, which resulted in demand. Against the said demand, the petitioner had preferred an appeal before the CEGAT, Bombay. Ultimately, the said proceeding before the CEGAT, Bombay was transferred to CEGAT at Calcutta. The learned Cousnsel for the petitioners contended that the demand was raised not on the units but on the company, which had its office at Calcutta. He further contended that different units of the petitioners are spread over all over India. But the excise demand is raised on the company. Therefore, he contended that by reason of the transfer of the proceeding to CEGAT at Calcutta in respect of the petitioners company, which has its office at Calcutta, this Court has jurisdiction to entertain this writ petition, even on the ground of the question of territorial jurisdiction. 1. On the question as to the maintainability that the writ petition in view of availing of the alternative remedy, the learned Counsel, Mr. A. Singhvi appearing with Mr. Goutam Mitra contended that the CEGAT had no jurisdiction to interpret the question with regard to the authority of the Joint Development Commissioner to issue certain clarification, which by reason of Section 13 of the Foreign Trade (Development & Regulation) Act, 1992 (FTDR Act) is conferred upon the Director General alone. The CEGAT has no jurisdiction to entertain determination of the proposition of the FTDR Act. Therefore, this question can only be entertained and gone into by this Court. 2. The third ground he has raised is that under Section 11A of the Excise Act, the excise duty can be recovered only for a period of 6 months from the date it became due. However, the proviso to Section HA prescribes that it can be dated back to a period of 5 years, provided there was fraud or collusion. Relying upon certain documents and annexures annexed with the writ petition, he contended that these questions were revealed in the return submitted by the petitioner and was always known to the respondents. Similar question was raised against the petitioner in another proceeding, when objected to, the said proceeding proceeded on grounds other than then ground covered under the proviso relating to the period beyond 6 months. Therefore, the initiation of the proceeding is incompetent and without jurisdiction. 3. If it is a question of jurisdiction, in that event, the question of fraud or collusion, though are matters relating to facts but it constituted jurisdictional fact, which this Court can go into, if raised. According to him, this question cannot be gone into by the CEGAT, since it would be in respect of interpretation of the statute under which CEGAT is constituted, which it cannot question. He had relied on various decisions to which reference would be made at appropriate stage.
(3.) Mr. Shiv Das Banerjee, learned Counsel appearing on behalf of the respondents, on the other hand, pointed out that the entire cause of action arose outside the territorial jurisdiction of this Court. The cause of action that is being alleged is against the action of the authority, who has its office at Western Region of the country, over which this Court has no territorial jurisdiction. So far as this question is concerned, this Court cannot assume jurisdiction in respect thereof. He further contended that transfer of the proceeding to CEGAT will not create jurisdiction so far as this Court is concerned. It will not create jurisdiction by reason of raising the demand against the petitioner company at Calcutta. Since the cause of action arose and all the respondents are outside the territorial jurisdiction of this Court, this Court cannot assume jurisdiction. 1. He had also relied on the decision in the case of State of Rajasthan v. Swaika Properties and Anr. He has also relied of an unreported decision of this Court in the case of Suprabhat Steels Limited and Anr. v. Customs, Excise & Gold (Control) Appellate Tribunal, Eastern Zonal Bench, W.P. No. 15484 (W) of 2001, disposed of on 13th February, 2002 by his Lordship Amitava Lala, to support his contentions. He further contended that this question of jurisdiction, which has been raised by the petitioner can very well be gone into by the CEGAT. 2. He further contended that the petitioner is guilty of delay and laches, since he could have challenged the same as soon as the notice to show cause was issued; but he waited till it was required to deposit the demand as condition precedent for hearing of the appeal under Section 35(F) of the Excise Act. He further contended that the petitioner has raised this question before the Commissioner, which has since been gone into and can very well be thrashed out in the appeal itself. On this ground, he prays that the writ petition be dismissed.;