Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Central Excise vs Ultra Marine And Pigments Ltd. on 22 March, 2000
Equivalent citations: 2000(70)ECC65
ORDER V.K. Ashtana, Member (T)
1. This is a Reference application against the Tribunal's Final Order No. 528/99 dated 8.3.99, wherein the Revenue's appeal had been considered and it was held by the Tribunal that since the appeal involved issue of short landing under Section 116 of the Customs Act and because the refund claim was pursuant to determination of whether the quantity was short landed or not, therefore, in terms of Section 129A proviso, the Tribunal had no jurisdiction to entertain this appeal, the matter being primarily concerned with under Section 116 of the Customs Act. The Tribunal had also relied on certain decisions of the High Court noted therein.
2. Heard Shri M. Kunhi Kannan, learned DR and Shri Muthu Venkatraman, learned Advocate for the respondents.
3. Learned DR submits that the reference application clearly distinguishes the case laws relied upon the Tribunal in the final order, therefore, the questions of law do arise even on jurisdiction, as have been framed in the said application and being questions of law, they need to be referred to the Hon'ble High Court at Madras. He reiterates all the grounds made out in the reference application.
4. Learned Advocate submits that a reference against final order of the Tribunal can lie to the Hon'ble High Court in terms of Section 130 of the Customs Act, 1962, only against an order of the Tribunal passed under Section 129B. Orders under Section 129B are passed after considering the appeals on merits. In this case, the appeal of the Revenue was not considered on merits and the preliminary objection of the Respondents that the Tribunal had no jurisdiction had been upheld. Therefore, his final order not being under Section 129B, provisions of Section 130 ibid, are not available to the Revenue.
5. We have carefully considered the rival submissions and records of the case. We find, on a perusal of the above-noted final order of the Tribunal, that therein it has been held since the refund claim in question arose out of the claim for short landing of goods under Section 116 of the Customs Act, therefore, the issue was not merely concerning refund claim, but primarily concerning the determination of whether or not there was short landing under Section 116 of the Customs Act. Since the Tribunal is precluded from considering any appeal under Section 116 of the Customs Act within the proviso to Section 129A of the Customs Act, therefore, in the said order the Tribunal had upheld the preliminary objection and found that it had no jurisdiction to entertain this appeal. Therefore, it is clear that the Tribunal did not at any stage consider the Revenue appeal on merits at all. In this connection, we have perused Section 129B of the Customs Act, which is extracted below:
(1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.
A plain reading thereof shows that any order under Section 129B would be issued only after hearing both sides on merits of the appeal. We have also perused Section 130 of the Act, which reads as under:
The Commissioner of Customs or the other party may, within sixty days of the date upon which he is served with notice of an order Under Section 129B (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 goods for purposes of assessment), by application in such form as may be specified by rules made in this behalf, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court:
Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient case from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days.
A plain reading shows thereof that Section 130 will be attracted only when either party is served with notice of an order under Section 129B and such an order is not relating to either rate of duty or valuation.
6. A perusal of the subject final order shows that the appeal was not considered on merits at all, but only on the question of jurisdiction. The question of jurisdiction is to be decided upon in terms of Section 129A of the Act. Therefore, the final order does not relate to Section 129B at all. Hence, the provisions of Section 130 are not available to either sides against this final order. Therefore, we find that the reference application is misconceived, being not available in law to the Revenue and therefore, not maintainable and the same is rejected.