R.C Lahoti, J.— Statement of case under Section 130 of the Customs Act, 1962 has to be made to or called for by a High Court. Clause (b) of Section 131-C defines ‘the High Court’ to mean in relation to any State, the High Court for that State. However, still, which State or the High Court for which State is a question not answered by the provision of the customs act and has to be answered by this order.

2. The petitioner Suraj Woollen Mills is carrying on its manufacturing activity of shoddy woollen fabrics, yarn and blankets situated in the industrial area of Panipat within the State of Haryana. In the year 1984-1985 the petitioner imported wool waste from M/S. Oastwell Supplies Ltd, Bradford West, Yorkshire, England. The goods were to reach Bombay seaport. This transaction led to issuance of notice under Section 108 of the Customs Act from the office of the Intelligence Officer, DRI, Bombay to the petitioner and resulted into a penalty being imposed on the petitioner by the Collector Customs Bombay in exercise of the powers conferred by Section 112(a) of the Customs Act. The petitioners preferred an appeal to the Customs, Excise and Gold Control Appellate Tribunal New Delhi which was heard by the North Regional Bench and came to be dismissed on 3.1.1992 by order Annexure P/9. The petitioner preferred an application under Section 130 of the Act seeking a reference to the High Court on the questions set out in the application. This application has also been rejected.

3. Feeling Aggrieved, the petitioner has filed the present petition under Section 130(3) of the Act seeking a mandamus to the Appellate Tribunal to state the case and refer it to the High Court. A preliminary objection has been raised to the jurisdictional competence of the Delhi High Court to hear the application submitting that it does not have territorial jurisdiction to entertain the petition which should have been filed before the High Court of Bombay.

4. We may briefly refer to the relevant statutory provisions so as to consider the validity of the objection so raised.

4.1 Section 3 of the Customs Act provides for classes of officers of Customs which the Central Govt may appoint. Under Section 4 the power of appelment may be delegated. Section 5 provides that an officer of Customs may exercise powers and discharge the duties conferred or imposed on him subject to such conditions and limitations as the Board may impose. Notifications have been issued from time to time whereby the powers have been conferred upon different officers by reference to geographical regions or by reference to subject matters to be dealt with by them.

4.2 Chapter XV provides for appeals and revisions. Appeals against the decisions or orders passed by an officer of Customs lower in rank than Collector Customs lie lo the Collector (Appeals) under Section 128. A decision or order passed by the Collector of Customs as an adjudicating authority and an order passed by the Collector (Appeals) under Section 128(A) is appealable to the Appellate Tribunal. The Collector of Customs or the other party may make an application requiring the Appellate Tribunal to refer to the High Court any question of law arising out of an order passed by the Tribunal under Section 129-B. The Tribunal shall draw a statement of case and refer it to the High Court under Section 130(1). If the Appellate Tribunal refuses to state the case on the ground that no question of law arises, then the applicant may apply to the High Court and the High Court if it is not satisfied with the correctness of the decision of the Appellate Tribunal refusing to state the case, may require the Appellate Tribunal to state the case and refer it accordingly. On receipt of such requisition, the Appellate Tribunal is bound to state the case and make a reference under Section 130(3).

5. For the purpose of Chapter XV, Section 131-C clause (h) defines the High Court to mean:

(i) in relation to any State, the High Court for that State;

(ii) in relation to a Union territory to Which the ‘jurisdiction of the High Court of a State has been extended by law, that High Court;

(iii) in relation to the Union Territories of Dadra and Nagar Haveli and Daman and Diu, the High Court at Bombay.

(iv) in relation to any other Union territory, the Highest court of civil appeal for that territory other than the Supreme Court of India”

6. In exercise of the powers conferred by sub section (4) of section 129c of the customs act, 1962 read with sub section (1) of section 129-d of the central excise and salt act, 1944 and section 81b of the gold (control) act 1968 the customs & gold (control) Appellate Tribunal has framed rules entitled Customs Excise and Gold (Control) Tribunal Procedure Rules 1982. Clause (d) of Rule 2 defines a bench to mean a bench of the Tribunal and includes a special bench and a member sitting singly. According to Rule 3 a bench may hold sittings only at headquarter or at such other place falling within its jurisdiction subject to such general orders as may be made by the President. Powers of the Bench are governed by Rule 3. A bench shall hear and determine such appeals and applications made under the Act or as the President may by general of special order direct. Where two or more benches are functioning at any place, the President may transfer an appeal or application from one bench to the other. An application for reference to the High Court or Supreme Court shall be heard by the same bench which heard the appeal giving rise to the application for reference. So also a request to state the case from the High Court has to be dealt with by the same bench (Rule 36) Copy of the judgment received by the Tribunal shall also be sent to the same bench (Rule 37).

7. In exercise of the powers conferred by Section 129C of the Customs Act, 1962, Section 35D of the Central Excise and Salt Act, 1944 and Section 31B of the Gold Control Act, 1968, the President or the Tribunal has issued order 137 of 1983 (dt. 19.9.1983) constituting the benches and laying down their powers and functions.

7.1 Para 2, 3 and 5 of the abovesaid order are relevant and are reproduced hereunder:

“2.Five Special Benches (or such other number as may be ordered from time to time shall be located at New Delhi and shall deal with matters relating, among other things to the determination of any question having a relation to the rate of duty of customs or of excise(hereinafter referred to as classification) or to the value of goods for purposes of assessment of duty of customs or of excise (hereinafter referred to as valuation).

3. Four Regional Benches (or such other number as may be ordered from time to time) as shown in column (2) of the Table below shall be located at the places respectively shown in column (3) of the said Table against them and each such Bench shall deal with matters (other than those falling within the jurisdiction of the Special Benches) where the first order was passed by an officer of Customs or Central Excise having his office in one of the States or Union Territories shown in column (4) of the said Table against that bench:

Provided that where an appeal arises out of imports or exports through a seaport, and the concerned importer or exporter is located within the jurisdiction of a Regional bench other than the Regional Bench which would normally have jurisdiction in respect of customs matters relating to that seaport, the appeal and matters connected therewith may, at the request of the importer or exporter (being the appellant or respondent) be dealt with by the Regional Bench within whose jurisdiction such importer or exporter is located, in the categories of cases specified by the President in this regard.

5(1) In any case where there is a doubt regarding jurisdiction, the President shall allocate the matter to such Bench as he may consider appropriate.

(2) Where a member of the Bench having jurisdiction in a matter has decided or dealt with that matter in any other capacity, or does not consider it proper, for any reason to deal with that matter, the President shall allot the matter to a reconstituted Bench which does not include that member or to another Bench, as he may consider appropriate.

7.2 Benches as constituted by the order and set out in a table Appended to the order as under:—

THE TABLE

SI. No. Title of the Bench Location Jurisdiction (1) (2) (3) (4) 1. North Regional Bench New Delhi States of Haryana, Himachal Pradesh, Jammu & Kashmir, Madhya Pradesh Punjab, Rajasthan and Ultar Pradesh; and Union Territories of Chandigarh and Delhi. 2. South Regional Bench Madras States of Andhra Pradesh Karnataka, Kerala, Tamil Nadu and Union Territories of Lakshadweep and Pondicherry. 3. East Regional Bench Calcutta States of Assam, Bihar, Manipur, Meghalaya, Nagaland, Orissa, Sikkim Tripura, West Bengal and Union Territories of Andaman and Nicobar Islands, Arunachal Pradesh and Mizoram 4. West Regional Bench Bombay States of Gujarat and Mahrashtra, Union Territories of Dadar and Nagar haveli and Goa, Daman and Diu.

7.3 Orders have also been issued by the Tribunal and notified publicly providing for special bench matters to the limited extent being heard “at the original centres (CEGAT published notice 4/86). Cegat order dated 23.1.1987 ([published notice 1/87) was issued on the requests made to the Tribunal by some appellants located in the northern region that their customs appeals relating to imports or exports through one of the main seaports might be heard at Delhi by the North Regional Bench, which appeals would normally be heard by the Regional Benches at Bombay, Calcutta or Madras.

8. Thus it is clear that there is no provision either in the Act or Rules or orders specifying the High Court of which State would hear a petition under any of the subsections of Section 130 of the Act in the event of an occasion arising for the purpose. It is true that the Appellate Tribunal is one for the entire country but the adjudicating authorities are spread and scattered throughout the country within the territorial jurisdiction of different High Courts. Territorial jurisdiction of a bench, as per Cegat order 137 of 1983, has to be considered by reference to different States. The jurisdiction of different officers under the Customs Act determined by reference to the nature of powers and functions conferred upon them and not necessarily by the location of the assessee. The appellate jurisdiction is determined again not by the location of the assessee's business or residence but by reference to the location of the office of the adjudicating authority in the particular case. For example, though an assessee may be in Punjab & Haryana, if he imports the goods at Bombay and an order of adjudication is passed by an officer below the Collector Customs at Bombay then the appeal would lie before the Collector (Appeals) at Bombay and second appeal filed would be heard by the West Regional Bench Bombay through for the sake of convenience the President may direct the matter to be heard by the North Regional Bench.

9. A similar question arose under pari materia, provisions of Income-tax Act, 1961, wherein also the assessees and the assessing officers are spread and scattered throughout the country and the Appellate Tribunal is having its seat at New Delhi, in SETH BANARSI DASS GUPTA v. CIT, [1978] 113 ITR 817, the assessee resided and carried on business at Meerut in UP. The assessment orders were passed by the ITO at Meerut and the appeals were heard by Appellate Asstt Commissioner Meerut. Further appeals preferred by the assessee were disposed of by the Delhi Bench of the Appellate Tribunal.

9.1 At the request of the assessee a reference was made by the Tribunal to Delhi High Court. At the hearing an objection was raised to the territorial jurisdiction of Delhi High Court to hear the reference. Having examined the position under the Income-tax Act, and the decision of Madras High Court in CIT v. S. Sivaramakrishna Iyer [1968] 70 ITR 860, this court returned the reference unanswered on the ground that it had no jurisdiction to entertain the same. The court held that when there is no direct statutory provision governing the matter, proper course would be to apply the same basis that has been adopted with regard to the jurisdiction of a bench of Appellate Tribunal. The Division Bench further opined that when a bench of the Appellate Tribunal hears and determines an appeal as an appeal from a particular state it would be appropriate for the Tribunal to state the case to the High Court from the State from which the appeal came. The DB upheld the objection to its jurisdictional competence to hear the reference and held that it was the High Court of Allahabad to which the reference could and should have been made.

9.2 The Division Bench of Delhi High Court in the case of Seth Banarsi Dass Gupta (supra) in principle approved the decisions of the High Court of Madras in the case of S. Shivramakrishna Iyer (supra) except for a marginal dissent. Madras High Court has held that the reference should be made to the High Court which had jurisdiction over the place at which the assesse carried on business, profession or vocation or resided. The Delhi High Court held that the basis for determination of jurisdiction should be the location of the office of the assessing authority.

10. The Division Bench decision in the case of Seth Banarsi Dass Gupta has been followed by another Division Bench in Birla Cotton & Spg Mills Ltd v. CIT Rajasthan (1980) 123 ITR 354. The assessee carried on business in Jaipur. It had its registered office in Delhi. The assessment orders were passed by ITO at Jaipur arid appeals were disposed by the AAC at Jaipur. The matter came up before the Tribunal at Delhi and was heard by the Central Bench of the Income-tax Appellate Tribunal as there was no Tribunal at Jaipur. The Division Bench held that the court to which reference should be made would be the court having jurisdiction over the territory in which the office of the ITO was situated.

11. Recently the same principle has been followed by this Court in Suresh Desai & Associates v. CIT [1991] 230 ITR 912. In this judgment, the Division Bench has assigned yet another reason why the High Court of that State wherefrom the matter arises would only be competent to hear the reference. A decision of one High Court is a binding authority within its territorial jurisdiction; but it is not a binding precedent for another High Court or Tribunal outside its territorial jurisdiction. The Division Bench has held as under:

“On account of the abovesaid doctrine of precedents and the rule of binding efficacy of the law laid down by the High Court within its territorial jurisdiction, the questions of law arising for decision in a reference should be determined by the High Court which exercises territorial jurisdiction over the situs of the Assessing Officer. Else it would result in serious anomalies. An assessee affected by an assessment order at Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it and suited to him and thus get rid of the law laid down to the contrary by the High Court of Bombay not suited to the assessee. This cannot be allowed.”

12. Having made a careful comparative reading of the provisions of the Income-tax Act and the Customs Act, as also the relevant rules and orders of the Tribunal we are unhesitatingly of the opinion that the principles laid down in the abovesaid three Division Bench decisions of Delhi High Court can be applied and do apply to the facts and circumstances of the present case.

13. The present case arises out of the State of Bombay. The petitioner may have its factory establishment at Panipat in the State of Haryana but that is irrelevant. The adjudicating authority is at Bombay. Obviously it is bound by the law laid down under the provisions of the customs act or any other law as interpreted by the High Court of Bombay. For the purpose of the case at hand, the petitioner must be held bound by the law as applicable and as prevailing in the State of Mahrashtra whereat the goods were to be imported and whereat the proceedings under the Act were concluded. In the case at hand if the CEGAT would have stated the case then the reference would have been made to the High Court of Bombay and in the event of the application for statement of case having been refused it is the High Court of Bombay which the petitioner should have approached for issuing a requisition to the Tribunal to state the case.

14. The learned counsel for the petitioner cited Gojer Bros v. Rattan Lal AIR 1974 SC 1380, Collector of Customs v. East India Commercial Co. AIR 1963 SC 1124 and Indian Institute of Technology v. Dr. P.C Jain & Ors (1991) 45 DLT 42 (para 18) dealing with the doctrine of merger in support of his submission that the order of the Collector of Customs Bombay had merged into the appellate order of the Tribunal which was having its seat at New Delhi and hence the High Court of Delhi was competent to hear the matter. In our opinion, the doctrine of merger has no relevance for answering the question posed before us for the reasons already stated herein-above.

15. For the foregoing reasons, the objection to the territorial jurisdiction of this Court to hear the petition is sustained. The petition is dismissed. Needless to say that the petitioner shall have the liberty to approach the competent High Court which in our opinion is the High Court of Bombay for seeking the appropriate relief. No order as to costs.