9911796707
TMI Blog2013 (7) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us but lies before the Joint Secretary, Government of India. Accordingly, the stay petition as well as the appeal is transferred to the office of the Joint Secretary, Government of India for further action. 3. Stay petition and appeal disposed of as indicated hereinabove." 3. From the order of the Tribunal, it emerges that the appeal before the Tribunal filed by the respondent since involved question of duty drawback, the Tribunal was of the opinion that such appeal was not maintainable under Section 129A [1] of the Customs Act, 1962 ["Act" for short]. The Tribunal thereupon transferred the appeal alongwith stay petition to the Joint Secretary, Government of India for further action. 4. The stand of the Revenue is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al on merits. Only direction is to transfer the proceedings before the revisional authority. Such powers are vested in the Tribunal by virtue of Rule 41 of the Customs, Excise Service Tax Appellate Tribunal [Procedures] Rules, 1982. 8. Having heard learned counsel for the parties and having perused the record, it emerges that the appeal filed by the respondent before the Tribunal was not maintainable. In fact, this part of the Tribunal's order is also accepted by the respondent. Additionally, as pointed out by the learned counsel for the Revenue, Section 129A of the Act though permits an aggrieved person to appeal to the Tribunal against an order of the Commissioner [Appeals] under Section 129A [1] of the Act, proviso to sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (a) a decision or order passed by the Commissioner of Customs as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under section 128-A; (c) an order passed by the Board or the Appellate Commissioner of Customs under section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Customs, either before or after the appointed day, under section 130, as it stood immediately before that day." 11. Under sub-section (1) of Section 129-B of the Act, the Appellate Tribunal may, after giving opportunity of hearing to the parties to the appeal, pass such orders as it thinks fit, confirming, modifyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il. Such rule reads as under :- Rule 41 : Orders and directions in certain cases - The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. 14. Rule 41 noted above does give the Tribunal, powers to make orders or to issue directions as may be found necessary or expedient in order to give effect to or in relation to its order or to prevent abuse of the process, or to secure the ends of justice. Such powers, however, which are ancillary in nature, must be seen in light of the Tribunal's power under Section 129-B of the Act. Such powers, when found necessary to be exercised, would be availa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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