9911796707
TMI Blog2025 (3) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... al stood revived and was pending before the appellate authority.' On a plain reading of Section 129A(1) and the applicable first proviso along with its clause (c), to our mind, the legislative intent is emphatically made clear by the language of the statute couched in prohibitive terms, twice over. Moreover, unlike the wordings of Section 130(1), the legislature having consciously omitted the phrase "among other things", coupled with the doubly emphasised prohibition in the negative, clearly conveys the legislative intent that an order "related to" simpliciter, payment of drawback as provided in Chapter X, and the rules made thereunder, is sufficient to oust the jurisdiction of this Tribunal from entertaining the appeal - if the order passed by the Commissioner (Appeals) under Section 128A relates to any of the aforesaid aspects, then by virtue of clause (c) to proviso to Section 128A (1), the jurisdiction of this Tribunal stands statutorily excluded and the appeal shall not lie to this Appellate forum. The concurrent jurisdiction of the Revisionary Authority as well as of this Tribunal to deal with orders relating to drawback, albeit arising from different hierarchical adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar defect of jurisdiction was also raised as Defective Appeal Diary No.42176 of 2024 in respect of the appeal papers pertaining to the Director of the Appellant filed with the Registry and both matters were listed for hearing on 24.02.2025. Since the issue related to jurisdiction and goes to the root of the powers or authority of this Tribunal to entertain the appeal, in order to decide the dispute as per applicable precedents and the prevalent position in law, the learned counsel was requested to share the decisions he intends to rely upon with the authorized representatives and the matter was adjourned to be heard on the next day. Learned Counsel Shri. Koushik appeared the next day and argued for the appellant as well as the prospective appellant. Learned Authorised representatives Shri. Anoop Singh and Ms. Anandalakshmi Ganeshram appeared on behalf of the Respondent and made their submissions. 2. Learned Counsel Shri. Koushik submitted that the jurisdiction of this Tribunal is not excluded as regards the appeal against any order of Commissioner (Appeals) if such order relates to recovery of drawback already sanctioned and paid. The learned counsel submits that sub-clause (c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules made thereunder", makes it clear that any aspect relating to Chapter X that has involved payment of drawback would come under the umbrella of all that stands excluded from the jurisdiction of the Tribunal and since the recovery of drawback is invariably preceded by a payment of drawback, the said recovery being consequent to the payment, would necessarily come within the fold of such orders that are excluded. Learned Authorised Representative Shri. Anoop Singh further stated that the decision in Ravi Technoforge cited by the learned counsel was not agreed with by the Honourable High Court of Delhi in Commissioner of Customs, Air-Cargo Export and the Commissioner of Customs (Exports) v. Sans Frontiers, 2023 (12) TMI 695-DELHI HIGH COURT. Learned authorised representative also stated that however, on an appeal preferred against the said Delhi High Court judgement, the Hon'ble Supreme Court has granted stay pending disposal of the Civil Appeal. Learned counsel Shri. Koushik produces an order in Civil Appeal No.12419/2024 in the case of M/s. Sans Frontiers v CC, Air Cargo Export stipulating that leave is granted in SLP (C) No.10726/2024 and that pending disposal of Civil Appeal No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appeal which had been disposed of by the said order of the appellate authority would be restored and it can be said to be pending before the appellate authority after the quashing of the order of the appellate authority. The same cannot be said with regard to an order staying the operation of the order of the appellate authority because in spite of the said order, the order of the appellate authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the appellate authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the appellate authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the appellate authority." 8. It is apparent therefore, that an order keeping in abeyance the judgment of a lower Court or authority does not deface the underlying ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvinced by the contention of the learned counsel that in view of the stay granted, the decision in Ravi Technoforge Pvt Ltd would hold the field while the matter is sub judice before the Honourable Supreme Court. To our mind, once appeal is filed and is admitted by the Honourable Supreme Court, the orders of the lower judicial forums being considered in such pending appeal are in jeopardy, and in the absence of clarity as to the nature of the stay granted by the Honourable Supreme Court, reliance thereon can be eschewed if other binding precedents are available. 9. Be that as it may, it is also seen that the decision of the Honourable Apex Court relied on in the case of Ravi Technoforge Pvt Ltd cited supra, namely, Asean Cableship Pte Ltd v. CC, 2022 (380) ELT 4 (SC) was considering the provisions of Section 130 of Customs Act, 1962, which is reproduced below: "130. Appeal to High Court. -(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 129A(1) along with the first proviso and its clauses, and the applicable Rule 16 of the Drawback Rules ibid. Section 129A (1) of the Customs Act, 1962 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) decision or order passed by the (Commissioner of Customs) as an adjudicating authority; (b) an order passed by the [Commissioner (Appeals)] under section 128A; (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; 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) any goods loaded in conveyance for importation into India, but which are not unloaded at their place of destination in In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) to proviso to Section 128A (1) stipulating "payment of drawback as provided in Chapter X, and the rules made thereunder". We are also of the view that payment of drawback has a causative umbilical link with repayment of drawback or recovery of drawback, being a consequence to such payment and which link is inextricably inseverable. It is also pertinent to note that Rule 16 of the Drawback Rules invoked in this case mandates that the claimant shall, on demand by a proper officer of Customs repay the amount so paid erroneously or in excess, as the case may be, and where the claimant fails to repay the amount, it shall be recovered in the manner laid down as more specifically stated therein. Prima facie, in the instant case the amount of drawback is admittedly repaid by the appellant and is thereafter being contested as not repayable. Thus, effectively the appellant is now seeking return of the repaid drawback or in other words, payment of the drawback which stands repaid by the appellant, back to the appellant is the consequential relief that is being sought before this Tribunal. In any event, on a plain reading of Section 129A(1) and the applicable first proviso along with its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recovery thereof would be within the jurisdiction of the Tribunal. Any such artificial interpretation would be against the harmonious construction of this phrase. 19. Our narration above would show that orders of recovery on attachment trace their parentage to the provisions of Chapter X. The sections under Chapter X provide for Rules to be made thereunder. The rules so made themselves provide for payment of drawback. A further rule provides for making the recovery of drawback wrongly paid. Reading the entire gamut of provisions together, we have to hold that the phrase used in the clause in the proviso would prevent the Appellate Tribunal from dealing with cases involving recovery of drawback also." 16. We too subscribe to the aforesaid view. It is also seen that on a reference pertaining to maintainability of appeals to this Tribunal in rebate/drawback matters, a larger bench of this Tribunal in its decision in Alembic Ltd v. CCE, Chandigarh-I, 2017 (350) ELT 253 (Tri-LB) has answered the reference and the relevant portion is as under: 8. However, since the matter has been referred to the Larger Bench, the question of jurisdiction framed by the referral Bench is answered, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the claim of interest made by the respondents and therefore, the Final Orders in question passed by the Appellate Tribunal are not liable to be set aside. 9. It is an admitted fact that Chapter 10 of Customs Act, 1962 deals with drawback amount, interest extra. 10. Even a glance of Section 129A of the Customs Act, 1962 would clearly show that the Appellate Tribunal has no jurisdiction with regard to any of the claim mentioned in Chapter X of the Customs Act, 1962. Since Section 129A of the Customs Act, 1962 has explicitly stated about the exclusion of Chapter X of the said Act and since only in Chapter X of the said Act drawback amount and interest have been mentioned, it is very clear that the Appellate Tribunal has no jurisdiction to deal with any matter arising out of interest. 11. In order to fortify the contention putforth on the side of the appellant, the following decisions are relied upon :- (a) In 2009 (246) E.L.T. 646 (Tri.-Kolkata) [Mercury exports and Manufacturing private limited. v. Commissioner of Customs (Port), Kolkata]. (b) In 2001 (136) E.L.T. 217 (Tri.-Mumbai) (Premium Intertrade Private Limited v. Commissioner of Customs, Mumbai). 12. In b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
