Page 37 - ELT_15th August 2020_Vol 373_Part 4

2020 ] “SUBSTANTIAL QUESTION OF LAW” UNDER CUSTOMS ACT & INCOME TAX ACT A113

the High Court from every decree passed in appeal by any court
subordinate to the High Court, if the High Court is satisfied that the
case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree
passed ex parte.
(3) In an appeal under this section, the memorandum of appeal
shall precisely state the substantial question of law involved in the
appeal.
(4) Where the High Court is satisfied that a substantial question of
law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and
the respondent shall, at the hearing of the appeal, be allowed to ar-
gue that the case does not involve such question [Also refer Order
XLII of the CPC] :
Provided that nothing in this sub-section shall be deemed to take
away or abridge the power of the court to hear, for reasons to be
recorded, the appeal on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves such ques-
tion.”
Section 103. Power of High Court to determine issue of fact. -
“In any second appeal, the High Court may, if the evidence on the record is
sufficient, determine any issue necessary for the disposal of the appeal, -
(a) which has not been determined by the lower Appellate Court
or both by the Court of first instance and the lower Appellate Court,
or
(b) which has been wrongly determined by such Court or Courts
reason of a decision on such question of law as is referred to in sec-
tion 100.”
Here, it would be pertinent to note that wordings used in this provision of CPC,
viz. Section 103, is identical to Section 260A(6) of Income Tax Act, 1961 and Sec-
tion 130(6) of Customs Act, 1962.
For the sake of fully understanding the amplitude of above-mentioned
provisions of the CPC, it is indispensable to take note of following important ob-
servations/findings/decisions of Hon’ble Supreme Court and Hon’ble High
Court/s [Dr. Medha Kolhatkar, The Code of Civil Procedure, 376-429, (Fourth edi-
tion, Lexis Nexis 2016)] :
• In Pattabhiramaswamy v. S. Hanymayya [AIR 1959 SC 57 (59)],
Hon’ble Supreme Court held that under Section 100 of CPC High
Courts cannot entertain appeal on the ground of erroneous finding
of fact howsoever gross the error may seem to be. A judge of the
High Court has no jurisdiction to interfere with the findings of fact
given by the first appellate Court based upon appreciation of the
relevant evidence.
• In Ramappa v. Bojjappa [AIR 1963 SC 1633 (1637)], Hon’ble Supreme
Court had held that adequacy or sufficiency of evidence to support
a finding of fact is not a ground of second appeal. However, in the
case of Ishwar Dass Jain v. Sohan Lal [AIR 2000 SC 426 (429)], Hon’ble
Supreme Court had held that where material or relevant evidence is
EXCISE LAW TIMES  15th August 2020  37