Custom, Excise & Service Tax Tribunal
Varsha Fabexpo Llp vs Commissioner Of Customs -Acc Mumbai on 30 January, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, MUMBAI
REGIONAL BENCH
Single Member Bench
Customs Appeal No. 88222 of 2019
(Arising out of Order-in-Appeal No. MUM-CUSTOMS-AXP-APP-483/19-20
dated 29.08.2019 passed by the Commissioner of Customs (Appeals),
Mumbai-III)
M/s. Varsha Fabexpo LLP Appellant
44B Devdeep Apt., Flat No.401,
4th Floor, Tilak Tagore Road,
Santacruz (W), Mumbai 400 054.
Vs.
Commissioner of Customs, ACC, Mumbai Respondent
Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 099.
Appearance:
Shri Neerav Mainkar, Advocate, for the Appellant Shri D.S. Maan, Deputy Commissioner, Authorised Representative for the Respondent CORAM:
HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Date of Hearing: 30.01.2023 Date of Decision: 30.01.2023 FINAL ORDER NO. A/85082/2023 This appeal is directed against Order-in-Appeal No. MUM- CUSTOMS-AXP-APP-483/19-20 dated 29.08.2019 passed by the Commissioner of Customs (Appeals), Mumbai-III. By the impugned order, Commissioner (Appeals) has held as follows:-
"From the above it is clear that Commissioner (Appeals) has power to condone 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 2 C/88222/2019 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. AC/RGB/5317/16-17/ACC dated 30.03.2017. Aggrieved by the rejection of the appeal, appellant has filed this appeal.
3.1 I have heard Shri Neerav Mainkar, Advocate for the appellant and Shri D.S. Maan, Deputy Commissioner, Authorised Representative for the Revenue.
3.2 Learned AR appearing for the Revenue raised preliminary objection to the appeal stating that as per Section 129A of the Customs Act, 1962, the appeal against the order of Commissioner (Appeals) on the issue relating to drawback is not maintainable before this Tribunal. He refers to the decision of the Delhi Bench of the Tribunal in the case of Avanti Overseas Pvt. Ltd. [2018 (363) ELT 969 (Tri.-Del.)] that such appeal cold have been filed only before the Revisionary Authority of the Government of India.
3.3 Learned counsel submits that this appeal is in respect of a case of demand for the drawback erroneously paid and is filed against the order of Commissioner (Appeals).
4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments.
4.2 In the case of Avanti Overseas Pvt. Ltd. [2018 (363) ELT 969 (Tri.-Del.)] relied upon by the learned AR, by the majority, following has been held:-
"12. [Order per : B. Ravichandran, Member (T)]. - I have perused the Final Order proposed by the Ld. Member (Judicial). With due regard, I am not able to accept the Final Order recorded by the Ld. Member (Judicial) with reference to admissibility of the present appeal before 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 3 C/88222/2019 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 Commissioner (Appeals), vide impugned order dated 10-7-2016, upheld the original order. He categorically held that drawback as claimed by appellant is not available to them as held by the original authority.
(d) Drawback Rules, 1995 were framed in terms of Section 75 of Customs Act, 1962 which falls under Chapter X of the Act.
(e) Section 129A of the Act deals with appeals to the Tribunal. The relevant portion of the said Section is as below :
"No appeal shall lie to the Appellate Tribunal and the 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) ... ... ... ...
(b) ... ... ... ...
(c) Payment of drawback as provided in Chapter X, and the rules made thereunder."
(f) Commissioner (Appeals) in the impugned order interpreted Notification No. 68/2007-Cus. (N.T.) which deals with drawback eligibility to the exporters.
13. The above factual deals will make it manifestly clear that the present dispute is essentially with reference to drawback claim filed by the appellant and is clearly barred for appeal before the Tribunal in view of the above statutory provisions. It is clear that the primary dispute is not with reference to the status of the appellant, whether 100% EOU or not, though the 4 C/88222/2019 same is the basis for resolving the dispute with reference to the claim of the appellant for drawback. The evidence or reason for a decision by itself cannot be considered as point of dispute. 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 appeal is involved, the question of fact/law of both drawback as well as classification, the appeal cannot be maintained before the Tribunal. It is to be further noted that in M/s. ESSAR Overseas Company, 2017 (348) E.L.T. 171 (Tri. - Mumbai), the Tribunal held that payment of drawback also includes the recovery of drawback. Any proceedings for recovery of drawback cannot be appealed before the Tribunal when the order is passed by Commissioner (Appeals).
27. The above section bars the jurisdiction of the Tribunal in respect of any order which relates to, among other things, payment of drawback. If the order impugned before the Tribunal relates to payment of drawback, the Tribunal will not have jurisdiction to decide the same. The Learned Member (Technical) is of the view that the dispute involves payment of drawback, and hence, the jurisdiction is barred. However, the Learned Member (Judicial) has taken the view that Commissioner (Appeals), in the impugned order, has decided the issue whether the appellant is 100% EOU or not, and since the appellant has made the same plea in the present appeal, the present appeal is maintainable in terms of Section 129A.
28. I am of the view that the difference of opinion can be resolved by reference to the decision of the Three Member Bench 5 C/88222/2019 in the case of Commissioner (Central Excise) v. Jindal Stainless Steel Limited (supra). The difference of opinion between the two Members in that case was also on the question of jurisdiction of the 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 manufacture of goods which are exported to any country or territory outside India. Under Section 35EE where the order is of nature referred to first proviso to Section 35B(1), a revision applications lies before the Central Government. In my view, in the case the main dispute is dispute over admissibility of export rebate as the Asst. Commissioner's order was in respect of rebate claim filed by the Respondent. Even if for the decision on the question of rebate any issue relating to classification is to be decided, that would not change the forum of appeal. Only in a situation where the Commissioner (Appeals) in the same order decides two issues one issue relating to export rebate and other issue relating to classification/valuation or Cenvat credit and the two issues are totally independent issues, the order of the Commissioner (Appeals) can be treated as two orders one in respect of export rebate and the other in respect of classification or valuation or Cenvat credit and only in such a case different portions of the order can be challenged before different authorities. But in a situation where the main issue is export rebate covered by first proviso to Section 35B(1) and if for deciding the issue relating to export rebate, some other issues have also to be decided, the Tribunal would not have jurisdiction and that order of Commissioner (Appeals) can be challenged only before the Jt. Secretary (RA) by filing a revision application."
6 C/88222/2019
29. The decision by the Three Members Bench 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 of the Tribunal is barred. The order of the Commissioner (Appeals) can be challenged only before the Revisionary Authority of Government of India by filing a Revisionary Application."
5.1 In view of the above majority order, I do not find this appeal maintainable before the Tribunal.
5.2 Appeal is dismissed.
5.3 However, the appellant is at liberty to approach the Revisionary Authority, if possible.
(Order pronounced in the open court) (Sanjiv Srivastava) Member (Technical) tvu