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TMI Blog2023 (5) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... The issue of status of the appellant has to be resolved in order to decide the fundamental issue of entitlement of drawback to the appellant. The pith and substance of the dispute in the appeal is about payment of drawback. In view of the above majority order, this appeal is not maintainable before the Tribunal - appeal dismissed. - Customs Appeal No. 88222 of 2019 - FINAL ORDER NO. A/85082/2023 - Dated:- 30-1-2023 - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Neerav Mainkar , Advocate , for the Appellant Shri D. S. Maan , Deputy Commissioner , Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No. MUM CUSTOMS- AXP-APP-483/19-20 dated 29.08.2019 pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efers to the decision of the Delhi Bench of the Tribunal in the case of Avanti Overseas Pvt. Ltd. [2018 (363) ELT 969 (Tri.-Del.)] that such appeal cold have been filed only before the Revisionary Authority of the Government of India. 3.3 Learned counsel submits that this appeal is in respect of a case of demand for the drawback erroneously paid and is filed against the order of Commissioner (Appeals). 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 In the case of Avanti Overseas Pvt. Ltd. [2018 (363) ELT 969 (Tri.-Del.)] relied upon by the learned AR, by the majority, following has been held:- 12. [Order per : B. Ravichandran, Member (T)]. - I have per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to : (a) (b) (c) Payment of drawback as provided in Chapter X, and the rules made thereunder. (f) Commissioner (Appeals) in the impugned order interpreted Notification No. 68/2007-Cus. (N.T.) which deals with drawback eligibility to the exporters. 13. The above factual deals will make it manifestly clear that the present dispute is essentially with reference to drawback claim filed by the appellant and is clearly barred for appeal before the Tribunal in view of the above statutory provisions. It is clear that the primary dispute is not with reference to the status of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in respect of any order which relates to, among other things, payment of drawback. If the order impugned before the Tribunal relates to payment of drawback, the Tribunal will not have jurisdiction to decide the same. The Learned Member (Technical) is of the view that the dispute involves payment of drawback, and hence, the jurisdiction is barred. However, the Learned Member (Judicial) has taken the view that Commissioner (Appeals), in the impugned order, has decided the issue whether the appellant is 100% EOU or not, and since the appellant has made the same plea in the present appeal, the present appeal is maintainable in terms of Section 129A. 28. I am of the view that the difference of opinion can be resolved by refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be decided, that would not change the forum of appeal. Only in a situation where the Commissioner (Appeals) in the same order decides two issues one issue relating to export rebate and other issue relating to classification/valuation or Cenvat credit and the two issues are totally independent issues, the order of the Commissioner (Appeals) can be treated as two orders one in respect of export rebate and the other in respect of classification or valuation or Cenvat credit and only in such a case different portions of the order can be challenged before different authorities. But in a situation where the main issue is export rebate covered by first proviso to Section 35B(1) and if for deciding the issue relating to export rebate, some oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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