2014 (11) TMI 1042 - HC - Customs

Claim of refund due to difference in quantity of import - remission of duty on the lost quantity. - loss of quantity of goods had occurred after its clearance for home consumption - duty was paid on higher quantity of import of Propene (Propylene) Polymer grade - Commissioner of Customs (Appeals), allowed the appeal of the importer. - Jurisdiction of tribunal to entertain the appeal Held that - Appellate Tribunal does not have jurisdiction to decide the appeal in respect of any order referred to in clause (b) of sub-section (1) to Section 129A of the Customs Act, which is relatable to short-landing. In view of the specific finding of fact by the Tribunal and the provision of law which oust the jurisdiction of the Tribunal, we find no error in the order of the Tribunal declining to entertain the appeal on an interpretation of proviso to sub-section (1) to Section 129A of the Customs Act. - Decided against the revenue.

Summary

Issues:
1. Interpretation of Sections 129A(b), 116, and 129DD of the Customs Act, 1962 for rejecting appeals based on jurisdiction.
2. Correctness of Tribunal's reasoning on the nature of appeal under Section 129DD and Section 129A(b) of Customs Act, 1962.
3. Determination of short landing versus short receipt after landing based on the Landing Certificate.
4. Review of the Tribunal's finding on the rejection of Review Petitions by the Revisional Authority.

Analysis:
1. The case involved the import of "Propene (Propylene) Polymer grade" through Cuddalore Port, where a discrepancy in the quantity manifested and the quantity indicated in the Landing Certificate led to a refund claim by the importer for the short-landed goods. The Original Authority rejected the refund claim, stating that the loss occurred after clearance for home consumption without remission of duty.

2. The Commissioner of Customs (Appeals) allowed the importer's appeal, leading to a revision under Section 129DD of the Customs Act. However, the Revisional Authority rejected the revision, stating that it pertained to a claim for refund of duty not maintainable under Section 129DD. Subsequently, the Department filed an appeal before the CESTAT, which was rejected based on the proviso to Section 129A(b) barring such appeals related to short-landing.

3. The Tribunal analyzed the quantities of "Propene" at various stages of importation and clearance to establish the short-landing of goods, accepting the importer's refund claim for the differential quantity. The Tribunal's decision was based on the jurisdictional limitation outlined in the proviso to Section 129A(b) of the Customs Act, which restricts appeals related to short-landing.

4. The Tribunal's finding that the Appellate Tribunal lacked jurisdiction to decide the appeal concerning short-landing under Section 129A(b) was upheld by the High Court. The Court affirmed the Tribunal's decision, stating that no error was found in declining to entertain the appeal based on the statutory provision excluding such appeals from the Tribunal's jurisdiction.

5. Consequently, the Court concluded that the Tribunal's reasoning was justified, and no appeal could be maintained against the Commissioner (Appeals) order. All substantial questions of law raised were answered accordingly, leading to the dismissal of the Civil Miscellaneous Appeal without costs.