2013 (7) TMI 277 - HC - Central Excise

Appellate Forum - Whether CESTAT in the facts and circumstances of the case right in ordering transfer of the respondent s appeal to the Joint Secretary, Government of India when it was found that such appeal was not maintainable before the Tribunal Held that - Powers of the Appellate Tribunal in an appeal before itself are quite wide. In addition to confirming, modifying or annulling the decision under appeal, the Tribunal may even remand the proceedings before the lower authority for fresh adjudication - Such powers can be exercised by the Tribunal only in an appeal which is maintainable - In terms of clause (c) to the proviso to sub-section 1 of Section 129A of the Act, the Tribunal had no jurisdiction to entertain the appeal of the respondent, the Tribunal could not have exercised any of the powers specified in sub-section (1) of section 129-B of the Act. The only option before the Tribunal had was to reject such an appeal as being not maintainable or return the papers back to the appellant for presentation before appropriate forum. Merely because, as pointed out by the learned counsel for the respondent that there is practice before the Tribunal to transfer such proceedings when found not maintainable, would not permit us to take a different view. A certain trend or practice howsoever old would not change the legal position. Such convention, unless backed up statutory provisions and powers available with the Tribunal, cannot be saved only on the ground that the same has lasted sufficiently long. When an appeal is found not maintainable with the Tribunal, proper course would be to return the papers and not to direct its transfer. - Order of CESTAT set aside - decided in favor of revenue.

Summary

Issues Involved:
1. Jurisdiction of the Tribunal to transfer an appeal to another authority when found not maintainable.

Detailed Analysis:

Issue 1: Jurisdiction of the Tribunal to transfer an appeal
The High Court considered the appeal challenging the order passed by the Customs, Excise & Service Tax Appellate Tribunal, where the Tribunal transferred the appeal to the Joint Secretary, Government of India, as it involved a duty drawback claim. The Revenue contended that the Tribunal exceeded its authority by transferring the proceedings not maintainable before itself. The Court framed the substantial question of law to determine if the Tribunal was correct in transferring the appeal when it was found not maintainable. The respondent's counsel argued that the Tribunal did not decide the appeal on merits but directed the transfer to the revisional authority, citing Rule 41 of the Customs, Excise & Service Tax Appellate Tribunal [Procedures] Rules, 1982.

The Court examined the provisions of Section 129A and Section 129B of the Customs Act, 1962, which govern the jurisdiction of the Tribunal. It noted that the appeal filed by the respondent was not maintainable before the Tribunal, as it related to payment of drawback, falling under the proviso to Section 129A(1). Referring to a previous decision, the Court held that such appeals were not within the Tribunal's jurisdiction. The Court emphasized that the Tribunal's powers under Section 129B could only be exercised in an appeal that was maintainable, and in this case, the Tribunal had no jurisdiction to entertain the appeal. The Court also rejected the reliance on Rule 41, stating that ancillary powers must align with the Tribunal's statutory powers under Section 129-B.

Ultimately, the Court ruled in favor of the Revenue, setting aside the Tribunal's decision to transfer the appeal. It emphasized that longstanding practices or conventions without statutory backing cannot override legal provisions. The Court cited a Delhi High Court decision, emphasizing that when an appeal is not maintainable, the appropriate action is to return the papers rather than transfer them.

In conclusion, the High Court held that the Tribunal had no jurisdiction to transfer an appeal that was not maintainable before it, and the impugned decision was set aside in favor of the Revenue.