2023 (5) TMI 775 - AT - Customs

Commissioner lacks power to condone delay in appeal; Tribunal directs appeals on drawback to Revisionary Authority

The appeal was dismissed as the Commissioner (Appeals) lacked the power to condone the delay beyond the prescribed period of 30 days. The appellant's ... Condonation of delay in filing appeal - power of Commissioner (Appeals) to condone the delay - drawback sanction has been demanded for the reason that the proof export obligation as prescribed was not filed by the appellant by the original authority - HELD THAT:- In the case of Avanti Overseas Pvt. Ltd. [2018 (4) TMI 920 - CESTAT NEW DELHI] relied upon by the learned AR, by the majority, following has been held that 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. In view of the above majority order, this appeal is not maintainable before the Tribunal - appeal dismissed. Issues:1. Condonation of delay in filing the appeal beyond the prescribed period.2. Challenge against the demand for drawback sanction.3. Maintainability of the appeal before the Tribunal under Section 129A of the Customs Act, 1962.Analysis:1. The appeal was dismissed as the Commissioner (Appeals) lacked the power to condone the delay beyond the prescribed period of 30 days. The appellant filed the appeal challenging the demand for drawback sanction, which was rejected due to non-submission of proof of export obligation. The Commissioner (Appeals) did not delve into the merits of the appeal due to the time limitation issue.2. The primary contention revolved around the demand for drawback sanction, with the appellant challenging the rejection based on non-compliance with export obligation proof submission. The Deputy Commissioner, as the Authorized Representative for the Revenue, raised a preliminary objection citing Section 129A of the Customs Act, 1962, arguing that appeals on drawback issues should be directed to the Revisionary Authority of the Government of India, not to the Tribunal.3. The Tribunal analyzed the precedent set by the case of Avanti Overseas Pvt. Ltd., emphasizing that appeals related to payment of drawback fall outside the jurisdiction of the Tribunal as per Section 129A of the Customs Act, 1962. The Tribunal highlighted that the dispute centered on the appellant's claim for drawback, which was deemed non-maintainable before the Tribunal. The decision underscored that the appeal could only be challenged before the Revisionary Authority of the Government of India, aligning with the statutory provisions outlined in the Customs Act.This comprehensive analysis encapsulates the key legal issues addressed in the judgment, focusing on the condonation of delay, challenge against the demand for drawback sanction, and the maintainability of the appeal before the Tribunal under Section 129A of the Customs Act, 1962.