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TMI Blog2013 (7) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad ["Tribunal" for short]. The order is short and reads as under :- "When this stay petition was called out, on perusal of records and after hearing both the sides, we find that the issue involved in this case is regarding rejection of drawback claim (sic filed) by the appellant before the lower authorities. 2. As per the provisions of Section 129A of the Customs Act, 1962, the appeal arising out of first appellate authority in rejection of draw back claim, does not lie before 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 Jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her authority. He placed reliance on the provisions contained in Section 129A and Section 129B of the Act. He also relied on the decision of the Madras High Court in case of India Pistons Ltd. v. Asstt Collector of Central Excise [1987] 27 ELT 651 wherein the learned Single Judge of the High Court held that when the appeal was not maintainable by the Tribunal, the same could not have been transferred in terms of the provisions contained in the Central Excise Act. 7. On the other hand, learned counsel Shri Dhaval Shah appearing for the respondent opposed the appeal contending that the Tribunal has not decided the appeal on merits. Only direction is to transfer the proceedings before the revisional authority. Such powers are vested in the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve provided for its transfer before the competent forum. We are afraid, the Tribunal had no such powers. Appeal before the Tribunal is provided under the Act under Section 129-A. In terms of clause (c) to the proviso to sub-section (1) of Section 129A, appeal of the respondent was not maintainable and the Tribunal had no jurisdiction to decide such an appeal. Section 129B of the Act pertains to orders of Appellate Tribunal and read as under :- "129-A : Appeals to the Appellate Tribunal - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r fresh adjudication; with or without liberty to taking additional evidence on record. Such powers can be exercised by the Tribunal only in an appeal which is maintainable. In other words, no such powers for obvious reasons can be exercised by the Tribunal in proceeding which is not competent before the Tribunal. In other words, when 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Even otherwise, we find that Delhi High Court (sic) in case of O.P Gulati v. Collector of Customs [1993] 66 ELT 97 (Tri-Delhi), taking note of the decision of Madras High Court in case of India Pistons Ltd. (supra) held that when an appeal is found not maintainable with the Tribunal, proper course would be to return the papers and not to direct its transfer. 16. In the result, question is answered in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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