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TMI Blog2024 (10) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. Hon ble High Court has specifically permitted all objections to be taken against the appeal filed by revenue in the remand proceedings before CESTAT. This appeal is not maintainable before CESTAT - Appeal dismissed as not maintainable. - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Manish Raj , Authorized Representative for the Revenue Shri Nishant Mishra , Advocate for the Assessee ORDER SANJIV SRIVASTAVA : This appeal has been filed by the Revenue against the Order-in-Appeal No.15-CUS/APPL/LKO/2019 dated 21.01.2019 passed by Commissioner (Appeals) Customs, GST Central Excise, Lucknow. By the impugned order learned Commissioner (Appeals) has partly allowed the appeal filed by the Appellant to the extent of converted absolute confiscation of the seized gold by the Original Authority but an option for redemption on payment of fine of Rs.7,50,000/- and also set aside penalty imposed under Section 114AA. 2.1 Revenue filed this appeal before the Tribunal which was dismissed by Final Order No.71214/2019 dated 28.06.2019 on the ground of amount involved being less than that permitted to the Revenue for filing an appeal before the Tribunal. 2.2 Rectification App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat apart from the redemption amount and penalty, the gold which has been seized, its value had also to be taken into consideration in this regard which exceeded the monetary limit of Rs.10 Lakh. This fact is disputed by learned counsel for the respondent who says that gold is not available for redemption. As the CESTAT has not considered any other issue but the instructions dated 11.07.2018 which apparently was not applicable as it was not issued under the Customs Act. Therefore, the substantial questions of law framed at 'A' 'B the answered in favour of the revenue/ appellant and it is held that the tribunal has erred in rejecting the appeal on the aforesaid ground relying upon the said instructions. The appeal of the appellant shall now stands restored before the CESTAT which shall be considered afresh! While doing so, it is open for the CESTAT to consider the monetary limit and litigation policy as applicable to proceedings under the Customs Act and all other pleas which may be raised by the respondent or the appellant therein. 2.4 Review Petition filed against the said order has been dismissed by order dated 22.05.2023. 3.1 Respondent to the revenue appeal has file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Sub Section 1 to Section 129A of the Customs Act, 1962 reads as follows : Section 129A. Appeals to the Appellate Tribunal. (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order (a) ; (b) an order passed by the Commissioner(Appeals) under section 128A; (c) ; (d) .: Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to , - (a) any goods imported or exported as baggage ; (b) ..; (c) . ; From the plain reading of the above provisions it is evident that the appeal in the present case before tribunal is not maintainable as tribunal has not been assigned any jurisdiction to entertain and consider such appeals. 5.4 In case of Sans Frontier [2023-TIOL-1728-HC-DEL-CUS] while interpreting the same provision Hon ble Delhi High Court observed:- 61. We do not agree with the said contention advanced on behalf of the Firm. It is settled law that competence of the Court to try a case goes to the very root of the jurisdiction. The inherent lack of jurisdiction makes the order passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled. Where the court has jurisdiction over the particular subject-matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case; or a defendant by entering an appearance without protest, or by taking steps in the proceedings, may waive his right to object to the court taking cognizance of the proceedings. No appearance or answer, however, can give jurisdiction to a limited court, nor can a private individual impose on a judge the jurisdiction or duty to adjudicate on a matter. A statute limiting the jurisdiction of a court may contain provisions enabling the parties to extend the jurisdiction by consent. 32. In Bahrein Petroleum Co. [(1966) 1 SCR 461 : AIR 1966 SC 634] this Court also held that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. It is well settled and needs no authority that where a court takes upon itself to exercise a jurisdiction it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing as per the above provision this appeal too was not maintainable before tribunal. In the said order Bench have noted the direction of Hon ble High Court Lucknow Bench (Order dated 08.08.2019 in Writ Petition No.21783 (M/B) of 2019) as follows:- 6. We are of the considered opinion that because on related issue cross appeals are pending and the issue of confiscation and other related issues would be adjudicated by the Appellate Authority viz. CESTAT constituted for Allahabad region, it would be appropriate that the petitioner makes all prayers before the said authority. Any order passed by the writ Court in this regard is likely to reflect on the jurisdiction of CESTAT. 7. The petition is disposed of with liberty to the petitioner to file an application before Customs Excise Service Tax Appellate Tribunal Allahabad. Taking note of the above direction and the fact that the Revenue appeal had been dismissed earlier for whatsoever reason Tribunal proceeded to decide the appeal. In terms of Article 226 the said direction contains in the order dated 08.08.2019 where to be followed. It also appears that no objection with regards to maintainability of this appeal before CESTAT was ever r ..... 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