Revenue appeal dismissed for failing to refer matter to Chief Commissioner under Section 129A proviso

CESTAT Kolkata dismissed Revenue's appeal as not maintainable. The case involved refund claims for duty paid on re-import of rejected ductile iron casting manhole covers originally exported but returned by foreign customers due to quality issues. Assessee sought refund claiming improper assessment under Notification 94/96-CUS and benefit of Notification 158/95-CUS. Tribunal held that Revenue failed to refer the matter to Chief Commissioner of Customs as required under proviso to Section 129A of Customs Act, 1962, making the appeal non-maintainable.

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Issues Involved:
1. Refund Claim
2. Delay in Filing Appeal
3. Maintainability of Appeal under Section 129A(2) of the Customs Act, 1962

Summary:

1. Refund Claim:
The revenue appealed against the Order-in-Appeal No. KOL/CUS/CKP/626/2009, which allowed the refund claim for duty paid on re-imported 'Ductile Iron Casting Manhole Covers, Frames & Grates' that were initially exported and returned as rejects. The original authority rejected the refund claim, stating that the goods were initially exported under the DEPB scheme and assessed under Notification No. 94/96-CUS. However, the Commissioner (Appeals) allowed the refund, noting that the assessee did not receive DEPB benefits due to the defective nature of the goods and should not suffer a greater tax burden.

2. Delay in Filing Appeal:
The revenue's appeal was filed with a delay of 210 days. The Tribunal had previously condoned this delay as per Misc. Order No. M/262/KOL/2011, S/419/2011. The High Court of Calcutta directed the Tribunal to hear the matter, including the question of the appeal's maintainability due to non-compliance with Section 129A(2).

3. Maintainability of Appeal under Section 129A(2) of the Customs Act, 1962:
The Tribunal examined whether the appeal was filed in compliance with Section 129A(2). The Commissioner (Port) initially accepted the Order-in-Appeal on 09.02.2010. However, after the Commissioner (Prev.) expressed a different opinion, the matter was not referred to the Principal Chief Commissioner or Chief Commissioner as required by the proviso to Section 129A(2). The Tribunal, referencing the Hon'ble Delhi High Court's decision in Commissioner of Service Tax vs. Japan Airlines International Co. Ltd. [2015 (39) S.T.R 541 (Del.)], held that the decision to file the appeal was validly arrived at after due consideration and consultation.

Separate Judgment by Judge:
Member (Judicial) disagreed, noting that the Commissioner (Port) had initially accepted the Order-in-Appeal and later changed his view, which is not permissible. The matter should have been referred to the Chief Commissioner as per Section 129A(2). Consequently, the appeal was deemed not maintainable.

Final Decision:
In the majority decision, it was concluded that the appeal was not maintainable as the matter was not referred to the Chief Commissioner as required by Section 129A(2). The appeal was dismissed.

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