Custom, Excise & Service Tax Tribunal
Titagarh Wagons Limited vs -Patna(Prev) on 20 November, 2024
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO. 1
Customs Appeal No. 75592 of 2021
(Arising out of Order-in-Appeal No. 90/PAT/CUS/APPEAL/2020-21 dated 26.02.2021
passed by the Commissioner (Appeals) Customs, Central GST & Central Excise,
Patna 2nd Floor, C.R. Building (Annexue), Beer Chand Patel Path, Patna)
M/s. Titagarh Wagons Limited : Appellant
756, Anandapur, EM Bypass
Kolkata, West Bengal-700 107
VERSUS
Commissioner of (Appeals) : Respondent
Customs, Central GST & Central Excise, Patna 2nd Floor, C.R.
Building (Annexue), Beer Chand Patel Path, Patna
And
Customs Appeal No. 75593 of 2021
(Arising out of Order-in-Appeal No. 99/PAT/CUS/APPEAL/2020-21 dated 26.02.2021
passed by the Commissioner (Appeals) Customs, Central GST & Central Excise,
Patna 2nd Floor, C.R. Building (Annexue), Beer Chand Patel Path, Patna)
M/s. Titagarh Wagons Limited : Appellant
756, Anandapur, EM Bypass
Kolkata, West Bengal-700 107
VERSUS
Commissioner of (Appeals) : Respondent
Customs, Central GST & Central Excise, Patna 2 Floor, C.R.
nd
Building (Annexue), Beer Chand Patel Path, Patna
APPEARANCE:
Shri Bhaskar Thakkar, Authorized Representative for the Appellant
Shri Faiz Ahmed, Authorized Representative for the Respondent
CORAM:
HON'BLE SHRI R. MURALIDHAR, MEMBER (JUDICIAL)
HON'BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL)
FINAL ORDER NOs.77571-77572/2024
DATE OF HEARING: 06.11.2024
DATE OF PRONOUNCEMENT: 20.11.2024
Page 2 of 9
Appeal No.: C/75592-75593/2021-DB
Order: [PER SHRI K. ANPAZHAKAN]
Customs Appeal No. 75592 of 2021 has been
filed against the impugned Order in Appeal No.
90/PAT/CUS/APPEAL/2020-2021 DATED 26.02.21
passed by the Commissioner (Appeals) Customs,
Central GST & Central Excise, Patna).
Customs Appeal No 75593 of 2021 has been filed
against the impugned Order-in-Appeal No.
99/PAT/CUS/APPEAL/2020-21 dated 26.02.2021
passed by the Commissioner (Appeals) Customs,
Central GST & Central Excise, Patna. As the issue
involved in both appeals are the same, they are
taken up together for decision by a common order.
2. Brief facts of the case are that M/s Titagarh
Wagons Limited (herein after referred as the
Appellant) is primarily engaged in manufacturing and
supply of wagons and other engineering goods. In
the year 2017, the Appellant had entered into a
contract with the Ministry of Physical Infrastructure
and Transport, Government of Nepal for the supply
of Modular Steel Bridges under Road Sector
Development Project. In terms of Para 12.1 of the
said agreement read with schedule of requirement
and price schedule, the Appellant was required to
supply 30 Modular Steel Bridges of which 27 bridges
would be of Indian origin and 3 bridges of France
origin.
3. In order to make supply to the Government of
Nepal as per the terms of the contract, the Appellant
had exported two Modular bridges of France origin of
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Appeal No.: C/75592-75593/2021-DB
specification 50m span, 7.35m wide, AASHTO P7
Truck Loading Capacity, along with one set extra
bearing with all accessories to the Ministry of
Physical Infrastructure and Transport, Government
of Nepal vide Shipping Bill No. 6189644 dated
12.07.2018. The said Modular Bridges were imported
from France under Bill of Entry No. 5703271 dated
23.03.2018, under a claim of Re-export duty
drawback for an amount of Rs. 80,12,153/- under
section 74 of the Customs Act, 1962 read with Re-
export of imported goods (Drawback of Customs
Duties) Rules, 1995.
3.1 The Appellant was issued a show cause notice
bearing File No
VIII(51)02/DBK/Titagarh/RXL/2019/515 dated 14.05
2019 by the Joint Commissioner of Customs, LCS.
Raxaul wherein it was alleged that the Appellant has
wrongfully claimed duty drawback as per Rule 6 of
the re-export of Imported goods (Drawback of
Customs Duties) Rules, 1995.
3.2. The Deputy Commissioner of Customs, LCS,
Raxaul, rejected the claim for drawback on re-export
under section 74 of the Customs Act, 1962 vide
Order-in-Original No. VIII(51)02/DBK/Titagarh/
RXL/2019/6002 dated 07.02.2020. Being aggrieved
by the order passed by the Ld. Deputy
Commissioner, the Appellant preferred an appeal
before the learned Commissioner (Appeals) of
Customs, CGST & Central Excise, Patna. The said
authority vide Order-in- Appeal No.
90/PAT/CUS/APPEAL/2020-21/ dated 26.02.2021
(received on 08.03.2021) and Order-in-Appeal No.
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Appeal No.: C/75592-75593/2021-DB
99/PAT/CUS/APPEAL/2020-21 dated 26.02.2021
disallowed the appeals filed by the appellant and
upheld the Orders-in-Original passed by the Deputy
Commissioner of Customs, LCS, Raxaul. The present
appeals are filed by the appellant against the
impugned Orders-in Appeal.
4. The Ld. Authorized Representative appearing for
the Revenue submitted that the issue involved in
these appeals are related to Drawback claims. As per
Section 129A of the Customs Act, 1962, this Tribunal
has no jurisdiction to deal with the appeals related to
drawback matters. Accordingly, he submitted that
the appeals are not maintainable. He further
submitted that the appellant is not eligible for the
benefit of clause (a) and (aa) of Notification No. 208-
Cus dated 01.10.1977. Accordingly, he submitted
that the Ld. Commissioner (Appeals) has rightly
rejected the drawback claim filed by the appellant.
5. Regarding maintainability of the appeals, the
appellant fairly conceded that this Tribunal is not
empowered to deal with issues related to drawback.
Accordingly, he prayed for granting 'Leave' for filing
Review Application before the Government of India.
6. Heard both sides and perused the appeal
documents.
7. We observe that the Ld. Departmental
Representative has raised the issue of maintainability
of the appeals before this Tribunal. Thus, before
going into the merits of this appeal, it is required to
address the issue of maintainability of these appeals.
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Appeal No.: C/75592-75593/2021-DB
We observe that as per Section 129A of the Customs
Act, 1962, this Tribunal has no jurisdiction to deal
with the appeals related to drawback matters.
7.1. For the sake of ready reference the said Section
129 A is reproduced below:
"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) a decision or order passed by the "Principal
Commissioner of Customs or Commissioner of Cus
toms) as an adjudicating authority,
(b) an order passed by the 10 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 12 Principal
Commissioner of Customs or 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 a conveyance for
importation into India, but which are not unloaded at
their place of destination in India, or so much of the
quantity of such goods as has not been unloaded at
any such destination if goods unloaded at such
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Appeal No.: C/75592-75593/2021-DB
destination are short of the quantity required to be
unloaded at that destination;
(c) payment of drawback as provided in Chapter X,
and the rules made thereunder:
7.2. A perusal of proviso (c) to Section 129A
reproduced above clearly indicate that this Tribunal
has no jurisdiction to deal with appeals related to
drawback matters.
8. We observe that this issue has been dealt by the
Hon'ble Delhi High Court in the case of Commissioner
of Customs, Air Cargo Export v. Sans Frontiers [2024
(387) E.L.T. 237 (Del.)] wherein the Hon'ble Delhi
High Court has held that Appeal to CESTAT against
order of Commissioner (Appeals) with respect to
recovery of duty Drawback on exported goods is not
maintainable as per Section 129A of Customs Act,
1962. The relevant portion of the said decision is
reproduced below:
"60. He submitted that the Revenue had agreed to
the jurisdiction of the learned CESTAT to entertain
the appeal and in fact, had sanctioned refund of
the amount of Drawback pursuant to the order
passed by the learned CESTAT. He further
submitted that the appeal challenging the order of
the learned CESTAT has been filed belatedly only to
overcome the argument that the Revenue, by its
consent, had agreed to the jurisdiction of the
learned CESTAT.
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 by the Court
void in law. There is also no inherent right to file an
appeal and the same is granted by the statute. In
the absence of any such right, the learned CESTAT
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Appeal No.: C/75592-75593/2021-DB
being a creature of statute, did not have any
jurisdiction to entertain the same. No Court or
Tribunal is empowered to usurp jurisdiction, which
it does not have. Any order passed by a Tribunal
that does not have the jurisdiction to pass such an
order, is non est. The invalidity of such orders can
be set up whenever they are sought to be
enforced.
62. It is well-settled that the order passed by a
Court, which does not have the subject matter
jurisdiction to adjudicate the issue, would be a
nullity. No consent, waiver or acquiescence can
confer jurisdiction upon a Court, which is otherwise
barred by the statute. The order, passed by a Court
having no jurisdiction, is non est and its invalidity
can be set up at any stage and in any proceedings.
...
64. Therefore, even if it is to be assumed that the Revenue had consented to the learned CESTAT hearing the appeal, the defect of lack of jurisdiction cannot be cured."
8.1. We observe that the above decision of the Hon'ble Delhi High Court has been affirmed by the Hon'ble Apex Court as reported in 2024 (20) Centax 172 (S.C.).
8.2. We also find that the same view has also been held by the Hon'ble Delhi High Court in the case of Commissioner of Customs, ACC Export Vs Arihant Overseas [2024 (19) Centax 525 (Del.)], wherein the Hon'ble Delhi High Court has held that in terms of Section 129DD of the Customs Act, 1962, the remedy against such orders is by way of a Revision to Central Government. The relevant portion of the said decision is reproduced below: -
"4. In M/S Sans Frontiers (supra), the Division Bench held that an order passed by a Court which did not have the subject matter jurisdiction to adjudicate the issue would be a nullity. No consent, waiver or acquiescence could confer jurisdiction upon a Court, which jurisdiction was otherwise barred by statute.Page 8 of 9
Appeal No.: C/75592-75593/2021-DB
5. As per the appellant, in terms of Section 129 (DD) of the Customs Act, 1962 ["the Act"], the remedy of impugning the order was by way of a Revision to the Central Government and an appeal to the Tribunal was not maintainable. Said position is not disputed by learned counsel for respondent who concedes that in terms of Section 129 (DD) of the Act, the remedy was only by way of a Revision and not by way of Appeal to the Tribunal. Learned counsel, however, submits that since the objection was not raised at an appropriate stage, respondent could not approach the Revisional Authority within the time prescribed by the statute. She submits that an opportunity be granted to the respondent to now file a Revision in terms of Section 129 (DD) of the Act before the Central Government."
8.3. In view of the above discussion and by following the decisions cited supra, we hold that the appeals filed by the appellant against the impugned orders are not maintainable as per Section 129A of the Customs Act, 1962.
9. We observe that the appellant has filed these appeals before the wrong Forum and hence these appeals are not maintainable before this Tribunal. As it is a genuine mistake, we observe that the appellant should not be penalised for filing appeal before the wrong forum. Accordingly, we grant 'leave' to the appellant to file the Revision Applications against the impugned Orders passed by the Commissioner (Appeals) before the Government of India as per Section 129 DD of the Customs Act, 1962, along with condonation of delay.
Page 9 of 9Appeal No.: C/75592-75593/2021-DB
10. The appeals filed by the appellant are disposed of on the above terms.
(Order Pronounced in Open Court on 20.11.2024) (R. MURALIDHAR) MEMBER (JUDICIAL) (K. ANPAZHAKAN) MEMBER (TECHNICAL) rkp