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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 ..... ndone delay of only 30 days and appeals filed beyond the expiry of 30 days of condonable period, Commissioner (Appeals) is not empowered to condone delay in filing appeal. I find that the appeal has been filed even beyond the condonable period of 30 days i.e. beyond 90 and hence not condonable under Section 128 of the Customs Act, 1962. As the impugned appeal is not maintainable on the time period prescribed for appeal, I have not gone into the merits of the appeals." 2.1 Appellant has filed this appeal before the Commissioner (Appeals) challenging the order whereby drawback sanction has been demanded for the reason that the proof export obligation as prescribed was not filed by the appellant by the original authority vide his order No. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal. The reasons for my disagreement are recorded as below : (a) The present proceedings emanated by issue of SCN dated 4-9-2014 by the Joint Commissioner of Customs (ICD), Tughlakabad. The SCN proposed a denial of drawback amounting to Rs. 6.91 crores and sought to recover the same under the provisions of Rule 16 of Customs and Central Excise Duties Drawback Rules, 1995. (b) The notice was decided by the original authority vide order dated 19-10-2015. The original authority held that the drawback amounting to Rs. 6.91 crores is to be denied and the amount already sanctioned was ordered to be recovered under Rule 16 ibid. The order also decides regarding confiscation of goods and penalties on the appellant. (c) The Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute. In other words, it is the claim of the appellant for drawback which is the point of dispute and the basis or evidence for resolving such dispute cannot alter the nature or essence of dispute. 14. With due regard, I also find that the case laws referred to by the Ld. Member (Judicial) have no application to the facts which are narrated above. It is noted that while examining an appeal by the Revenue in DCS International Trading Company (P) Ltd. - 2017-TIOL-2093-CESTAT-DEL, the Tribunal relying on various earlier decisions held that when the main issue is export rebate which may be linked with some other issues, the Tribunal has no jurisdiction to take up the appeal against the order of Commissioner (Appeals). It was held that when an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, in relation to the admissibility of export rebate in Central Excise. The Learned Member (Technical), while resolving the difference of opinion, has observed as follows : "As regards the second point of difference, the main dispute in this case is over the admissibility of export rebate under Rule 18 in respect of export of Ice buckets and Waste baskets. The issue of export rebate depends upon the issue of classification. In terms of first proviso to Section 35B(1), the Tribunal has no jurisdiction over the appeals against the orders passed by Commissioner (Appeals) in the matters relating to rebate of duty of excise on the goods exported to any country or territory outside India or of rebate on excisable material used in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench is to be considered on par with a Larger Bench Decision and is a binding precedent. Applying the ratio of the above case to the current one, I note that in the present case, to decide the issue of eligibility of drawback, it is necessary to first decide the issue of the status of the appellant - whether they are a 100% EOU or not. The two issues are not totally independent issues. 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. Consequentially, I am of the view that the present case will fall within the category of orders against which the appellate jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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