2025(03)LCX0036

Hoque Mercantile Private Limited

Versus

Commissioner of Customs

Customs Appeal No. 40959 of 2024 decided on 12-03-2025

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL CHENNAI

REGIONAL BENCH - COURT No. I

Customs Appeal No. 40959 of 2024

(Arising out of Order-in-Appeal Seaport C.CUS.II No. 789/2024 dated 28.08.2024 passed by the Commissioner of Customs (Appeals-II), Chennai)

M/s. Hoque Mercantile Pvt Ltd.                         ...Appellant
Director of M/s. Hoque Mercantile Pvt Ltd.,
27 6th Floor, Room, M.K. Point, 601, Bentinck St.,
Kolkata, West Bengal 700 001.

Versus

Commissioner of Customs, Chennai II             ...Respondent
No.60, Rajaji Salai,
Custom House, Chennai – 600 001.

And
Defective Appeal Diary No. 42176 of 2024

(Arising out of Order-in-Appeal Seaport C.CUS.II No. 789/2024 dated 28.08.2024 passed by the Commissioner of Customs (Appeals-II), Chennai)

M/s. MD Enamul Hoque                                             ...Appellant
Director of M/s. Hoque Mercantile Pvt Ltd.,
27 6th Floor, Room, M.K. Point, 601, Bentinck St.,
Kolkata, West Bengal 700 001.

Versus

Commissioner of Customs, Chennai II                     ...Respondent
No.60, Rajaji Salai,
Custom House, Chennai – 600 001.

APPEARANCE:

Present For the Appellants     : Mr. Koushik, Advocate
Present For the Respondent   : Mr. Anoop Singh, Authorised Representative
                                               Ms. Anandalakshmi Ganeshram, Authorised
                                               Representative

CORAM :

HON’BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL)
HON’BLE MR. AJAYAN T.V. MEMBER (JUDICIAL)

FINAL ORDER No.40339/2025

DATE OF HEARING: 25.02.2025
DATE OF DECISION: 12.03.2025

Per Ajayan T.V.,

    Registry has, after numbering the appeal preferred by M/s. Hoque Mercantile Pvt Ltd as C/40959/2024, raised a defect stating that the issue pertains, inter-alia, to duty drawback under Rule 15 (sic) of the Customs and Central Excise Duties Drawback Rules 1995 read with section 75 and 124 of the Customs Act 1962, which does not fall under the jurisdiction of CESTAT. A similar defect of jurisdiction was also raised as Defective Appeal Diary No.42176 of 2024 in respect of the appeal papers pertaining to the Director of the Appellant filed with the Registry and both matters were listed for hearing on 24.02.2025. Since the issue related to jurisdiction and goes to the root of the powers or authority of this Tribunal to entertain the appeal, in order to decide the dispute as per applicable precedents and the prevalent position in law, the learned counsel was requested to share the decisions he intends to rely upon with the authorized representatives and the matter was adjourned to be heard on the next day. Learned Counsel Shri. Koushik appeared the next day and argued for the appellant as well as the prospective appellant. Learned Authorised representatives Shri. Anoop Singh and Ms. Anandalakshmi Ganeshram appeared on behalf of the Respondent and made their submissions.

2. Learned Counsel Shri. Koushik submitted that the jurisdiction of this Tribunal is not excluded as regards the appeal against any order of Commissioner (Appeals) if such order relates to recovery of drawback already sanctioned and paid. The learned counsel submits that sub-clause (c) of the first proviso to Section 129A(1) refers to an order relating to payment of drawback as provided in Chapter X and the rules thereunder, whereas an order relating to recovery of drawback is different from an order relating to payment of drawback since payment and recovery are governed by distinct rules under the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 (Drawback Rules). Learned Counsel submitted that while Rule 14 of the Drawback Rules pertains to payment of drawback and interest, it is Rule 16 that relates to repayment of erroneous or excess payment of drawback and interest and it is Rule 16A of the Drawback rules which pertain to recovery of amount of Drawback where export proceeds are not realized. He placed reliance on a decision of the coordinate bench of this Tribunal in Ravi Technoforge Pvt Ltd and Alamcheril Philips Mathew v CC Kandla and CC Mundra, reported in 2022 (10) TMI 267- CESTAT AHMEDABAD to contend that this Tribunal has jurisdiction to entertain the appeal and decide the matter on merits. The learned counsel submits that in the said decision a coordinate bench of this Tribunal has found that recovery of drawback already sanctioned and paid is different from payment of drawback and are governed by different rules. The Tribunal noticed that the principal cause of action in the matter therein is relating to classification of goods and that the Tribunal had jurisdiction to decide the classification issues. The learned counsel submits that in such circumstances the Tribunal has held that in terms of section 129A the appeals are maintainable before the Tribunal.

3. Learned Authorised Representatives submitted that a plain reading of the proviso to Section 129A (1)would make it evident that the Tribunal does not have jurisdiction to decide the appeal in respect of any order referred to in clause (b) of Section 129A (1), namely, an order passed by the Commissioner (Appeals) under Section 128A, if such order relates to payment of drawback as provided in Chapter X, and the rules made thereunder. It was stressed that the phrase ‘relates to’ in this context would take within its ambit an order pertaining to recovery of drawback that has been already paid. The use of a comma after the words “payment of drawback as provided in Chapter X” in clause (c) of the first proviso to section 129(A), followed by the words “ and the rules made thereunder”, makes it clear that any aspect relating to Chapter X that has involved payment of drawback would come under the umbrella of all that stands excluded from the jurisdiction of the Tribunal and since the recovery of drawback is invariably preceded by a payment of drawback, the said recovery being consequent to the payment, would necessarily come within the fold of such orders that are excluded. Learned Authorised Representative Shri. Anoop Singh further stated that the decision in Ravi Technoforge cited by the learned counsel was not agreed with by the Honourable High Court of Delhi in Commissioner of Customs, Air-Cargo Export and the Commissioner of Customs (Exports) v. Sans Frontiers, 2023 (12) TMI 695-DELHI HIGH COURT. Learned authorised representative also stated that however, on an appeal preferred against the said Delhi High Court judgement, the Hon’ble Supreme Court has granted stay pending disposal of the Civil Appeal. Learned counsel Shri. Koushik produces an order in Civil Appeal No.12419/2024 in the case of M/s. Sans Frontiers v CC, Air Cargo Export stipulating that leave is granted in SLP (C) No.10726/2024 and that pending disposal of Civil Appeal No.12419/2024, there shall be interim stay as prayed for in I.A.No.288739/2024. The learned counsel submits in rejoinder that in view of the stay granted, the decision in Ravi Technoforge Pvt Ltd would hold the field and the defect raised by the registry needs to be vacated.

4. Heard both sides, perused the citations submitted and the records solely for deciding the preliminary issue of maintainability of the appeal preferred and whether or not there exists jurisdiction for this Tribunal to decide the matter on merits.

5. Since the decision of the coordinate bench of this Tribunal at Ahmedabad, cited by the learned counsel has been disagreed with by the Honourable Delhi High Court in its Judgement, which in turn has been carried to the Honourable Supreme Court, and is stayed in accordance with the I.A. preferred in the matter, we deem it appropriate to understand at first the effect of such stay granted by the Honourable Apex Court.

6. We notice that the Honourable High Court of Delhi has in its decision in Principal Commissioner of C.Ex. Delhi-I v. Space Telelink Ltd, 2017(355) ELT 189 (Del) considered the effect of stay of proceedings by the Honourable Supreme Court and has held as under:

“7. The revenue has argued that the Supreme Court has entertained a Special Leave Petition against the judgment of the Gujarat and Madras High Courts and furthermore, granted a stay of proceedings and that in these circumstances, the law declared in those judgments are no longer applicable. This submission is fallacious because in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (1992) 3 SCC 1, the Supreme Court had observed as follows:

“While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the appellate authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the appellate authority would be restored and it can be said to be pending before the appellate authority after the quashing of the order of the appellate authority. The same cannot be said with regard to an order staying the operation of the order of the appellate authority because in spite of the said order, the order of the appellate authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the appellate authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the appellate authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the appellate authority.”

8. It is apparent therefore, that an order keeping in abeyance the judgment of a lower Court or authority does not deface the underlying basis of the judgment itself, i.e. its reasoning.”

7. It is also seen that the effect of a judgement of High Court under challenge in Supreme Court has been dealt with by the Honourable High Court of Andhra Pradesh in its judgement in Commissioner of Customs, Vishakapatnam v Gayatri Timbers Pvt Ltd, 2018 (360) ELT 267 (A.P), and the relevant portions are as under:

“14. The grant of leave by the Supreme Court, as against the judgment of a High Court, does not have the effect of wiping out any principle of law laid down by the High Court. Even in cases where a stay is granted by the Supreme Court, the question would depend upon whether an interim stay was granted of the operation of the judgment of the High Court or of the further proceedings pursuant to the order of the High Court. If an interim stay of operation of the judgment of the High Court is granted by the Supreme Court, then it could possibly be argued that the judgment of the High Court cannot be followed as a precedent. Even in such cases, there is no embargo upon the other High Courts to follow the reasoning adopted by the High Court whose judgment was stayed by the Supreme Court, to come to the very same conclusion.

15. In cases where an interim stay is granted by the Supreme Court only in respect of further proceedings, the principle of law laid down by the High Court does not get automatically suspended. In cases where no stay is granted by the Supreme Court, the Tribunal is entitled to follow the judgment of the High Court that is under appeal.”

8. From the judgements of the Honourable High Courts stated supra, it is evident that if the said decision in Commissioner of Customs (Exports) v. Sans Frontiers, 2023 (12) TMI 695- DELHI HIGH COURT is cited before any other High Court, nothing precludes that High Court from adopting the reasoning of the Honourable Delhi High Court. Since we are not made aware of the contents of the IA before the Honourable Supreme Court, it is not possible to discern from the order produced by the learned counsel whether an interim stay was granted of the operation of the judgment of the Honourable Delhi High Court in Sans Frontier case or of the further proceedings pursuant to the order of the Honourable Delhi High Court. If it were the latter, then the principle of law laid down by the High Court does not get automatically suspended. Hence, we are not entirely convinced by the contention of the learned counsel that in view of the stay granted, the decision in Ravi Technoforge Pvt Ltd would hold the field while the matter is sub judice before the Honourable Supreme Court. To our mind, once appeal is filed and is admitted by the Honourable Supreme Court, the orders of the lower judicial forums being considered in such pending appeal are in jeopardy, and in the absence of clarity as to the nature of the stay granted by the Honourable Supreme Court, reliance thereon can be eschewed if other binding precedents are available.

9. Be that as it may, it is also seen that the decision of the Honourable Apex Court relied on in the case of Ravi Technoforge Pvt Ltd cited supra, namely, Asean Cableship Pte Ltd v. CC, 2022 (380) ELT 4 (SC) was considering the provisions of Section 130 of Customs Act, 1962, which is reproduced below:

“130. Appeal to High Court. -(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (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 the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (emphasis supplied)

10. The Honourable Supreme Court has in para 4.1 held as under:

“4.1 While considering the aforesaid issue the main controversy and/or the principal question is required to be addressed. It was/is the case on behalf of the petitioner that the vessel AE being a foreign-going vessel the imported stores are eligible to the exemption under Section 87 of the Act. Therefore, the principal question/issue is the exemption claimed under Section 87 of the Act. Whether the assessee is entitled to exemption as claimed or not, such an issue cannot be said to be an issue relating, amongst other things, to the determination of any question having relation to the rate of duty. The submission on behalf of the petitioner that the duty will be NIL and if not, which is the case of the Customs Department, it will be the applicable rate of duty and therefore, such a dispute can be said to be in relation to the rate of duty, has no substance. The dispute with respect to the exemption claimed and the dispute with regard to the rate of duty are both different, distinct and mutually exclusive. We are of the firm opinion that the dispute concerning an exemption cannot be equated with a dispute in relation to the rate of duty.”

11. To our mind, in the aforementioned decision, the Honourable Supreme Court has determined that the main controversy and/or the principal question is required to be addressed, given that what Section 130 (1) has chosen to exclude from the jurisdiction of the High Courts is “ 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 the purposes of assessment.” It stands to reason that when the statute itself stipulates that determination of any question having a relation to the rate of duty of customs or to the value of goods for the purpose of assessment is an aspect, “among other things”, then it is but natural that the main controversy and/or the principal question that would arise is required to be determined in order to arrive at a decision whether or not the appeal can be entertained.

12. For better appreciation of the issue at hand, we are reproducing the relevant provisions of the Customs Act, 1962, namely, Section 129A(1) along with the first proviso and its clauses, and the applicable Rule 16 of the Drawback Rules ibid.

Section 129A (1) of the Customs Act, 1962

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) decision or order passed by the (Commissioner of Customs) as an adjudicating authority;

(b) an order passed by the [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 (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 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 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:

Provided xxxxxxx xxxxxxxxx

              Xxxxxxx xxxxxxxxx

Rule 16 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995

Rule 16. Repayment of erroneous or excess payment of drawback and interest:- Where an amount of drawback and interest, if any, has been paid erroneously or the amount so paid is in excess of what the claimant is entitled to, the claimant shall, on demand by a proper officer of Customs repay the amount so paid erroneously or in excess, as the case may be, and where the claimant fails to repay the amount a shall be recovered in the manner laid down in sub-section (1) of section 142 of the Customs Act, 1962 (52 of 1962)

13. It is pertinent to note that the phrase “among other things”; which exists in Section 130(1) of the Customs Act, 1962 and was the subject matter of consideration before the Honourable Apex Court in Asean Cableship Pte Ltd v. CC, 2022 (380) ELT 4 (SC); is conspicuous by its absence in the first proviso to Section 129A(1). As can be seen from the statutory provisions cited supra, the first proviso to Section 129A(1) is a mandate couched in the negative further emphasized with the word “shall” twice, stipulating first that “no appeal shall lie to the Appellate Tribunal”, and then again that “the Appellate Tribunal shall not have jurisdiction to decide any appeal” while ousting the jurisdiction of the tribunal. The said proviso to Section 129A(1) when considered with its clause (c), would read as under :

“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 payment of drawback as provided in Chapter X, and the rules made thereunder.”

14. We notice that commas are grammatically also used to separate independent clauses when they are joined by any of these seven coordinating conjunctions: and, but, for, or, nor, so, yet. Thus, if the order relates to rules made under Chapter X, then too the same would stand ousted from any consideration by this Tribunal, by virtue of clause (c) to proviso to Section 128A (1) stipulating “payment of drawback as provided in Chapter X, and the rules made thereunder”. We are also of the view that payment of drawback has a causative umbilical link with repayment of drawback or recovery of drawback, being a consequence to such payment and which link is inextricably inseverable. It is also pertinent to note that Rule 16 of the Drawback Rules invoked in this case mandates that the claimant shall, on demand by a proper officer of Customs repay the amount so paid erroneously or in excess, as the case may be, and where the claimant fails to repay the amount, it shall be recovered in the manner laid down as more specifically stated therein. Prima facie, in the instant case the amount of drawback is admittedly repaid by the appellant and is thereafter being contested as not repayable. Thus, effectively the appellant is now seeking return of the repaid drawback or in other words, payment of the drawback which stands repaid by the appellant, back to the appellant is the consequential relief that is being sought before this Tribunal. In any event, on a plain reading of Section 129A(1) and the applicable first proviso along with its clause (c), to our mind, the legislative intent is emphatically made clear by the language of the statute couched in prohibitive terms, twice over. Moreover, unlike the wordings of Section 130(1), the legislature having consciously omitted the phrase “among other things”, coupled with the doubly emphasised prohibition in the negative, clearly conveys the legislative intent that an order “related to” simpliciter, payment of drawback as provided in Chapter X, and the rules made thereunder, is sufficient to oust the jurisdiction of this Tribunal from entertaining the appeal. To our mind, any repayment of drawback, recovery upon failure to repay the amount of drawback paid erroneously or paid in excess, recovery of drawback where export proceeds are not realized, for all of which rules are made under Chapter X are intrinsically related to payment of drawback and an order on these aspects would be covered as an order ‘related to payment of drawback under Chapter X, and the rules thereunder.’ Hence, we are of the view that if the order passed by the Commissioner (Appeals) under Section 128A relates to any of the aforesaid aspects, then by virtue of clause (c) to proviso to Section 128A (1), the jurisdiction of this Tribunal stands statutorily excluded and the appeal shall not lie to this Appellate forum.

15. We notice that as early as in 2000, a coordinate bench of this Tribunal in its decision in Premium Intertrade Pvt Ltd v CC, Mumbai, 2001 (136) ELT 217 (Tri-Mumbai) has considered the issue of an appeal relating to recovery of drawback erroneously paid. After discussion of facts and noticing the relevant provisions of the Customs Act, 1962 and the Customs and Central Excise Duties Drawback Rules, 1995, the relevant portion of the order reads as under:

“18. We have carefully considered the coverage of the relevant provisions. The provisions of Sections 74 and 75 of the Act and Rules made thereunder lay down the system not only of the grant of drawback but also of the recovery of drawback wrongly paid. The specific mention as to recovery exists in the second proviso to Section 75 of the Act. Therefore the phrase “payment of drawback” used in the proviso to Section 129A cannot be so interpreted as to mean that the disputes relating to payment of drawback alone would be out of the preview of the Tribunal and that any peripheral issues and resultant issues such as recovery thereof would be within the jurisdiction of the Tribunal. Any such artificial interpretation would be against the harmonious construction of this phrase.

19. Our narration above would show that orders of recovery on attachment trace their parentage to the provisions of Chapter X. The sections under Chapter X provide for Rules to be made thereunder. The rules so made themselves provide for payment of drawback. A further rule provides for making the recovery of drawback wrongly paid. Reading the entire gamut of provisions together, we have to hold that the phrase used in the clause in the proviso would prevent the Appellate Tribunal from dealing with cases involving recovery of drawback also.”

16. We too subscribe to the aforesaid view. It is also seen that on a reference pertaining to maintainability of appeals to this Tribunal in rebate/drawback matters, a larger bench of this Tribunal in its decision in Alembic Ltd v. CCE, Chandigarh-I, 2017 (350) ELT 253 (Tri-LB) has answered the reference and the relevant portion is as under:

8. However, since the matter has been referred to the Larger Bench, the question of jurisdiction framed by the referral Bench is answered, observing that an order passed by the Commissioner (Appeals) under Section 35A ibid in respect of rebate of duty of excise on exportation of goods, is not maintainable before this Tribunal in terms of Section 35B ibid. Similarly, an order passed by the Commissioner (Appeals) under Section 129A ibid in respect of payment of drawback as provided in Chapter-X, and the rules made thereunder is not maintainable before this Tribunal in terms of Section 129A ibid.”

17. Further, it is seen that on an issue pertaining to payment of interest on an amount already paid by Revenue consequent to the order of the Tribunal, when the Revenue agitated the issue of jurisdiction before the jurisdictional High Court of Madras, the Hon’ble High Court, in the case reported as Commissioner of Customs, Tuticorin v. Stallion Garments, 2014 (308) ELT 467 (Mad), found that the Revenue is not precluded from raising the issue of jurisdiction even at that stage and held in favour of the Revenue. The relevant portions are as under:

“6. The learned counsel appearing for the appellant has drawn the attention of the Court to the provision of Section 129A of the Customs Act, 1962 wherein in the first proviso Clause it is mentioned that no appeal shall lie to the appellate Tribunal in respect of the items mentioned therein and in Clause (c) it has been clearly mentioned that payment of drawback as provided in Chapter X and the rules made thereunder. Therefore, it is quite clear that as per first proviso Clause available in Section 129A of the Customs Act, 1962, the Appellate Tribunal is not empowered to deal with any matter relating to drawback amount including interest.

7. As stated earlier, the main contention putforth on the side of the appellant is that the Appellate Tribunal is not having jurisdiction as per Section 129A of the Customs Act, 1962 to deal with the matter arising out of interest.

8. The learned counsel appearing for the respondents has contended that with regard to payment of drawback amount already a proceeding has been initiated and as per orders passed by the Appellate Tribunal (CESTAT), the Department has paid the same and the present matters are related to payment of interest and further the entire Chapter 10 of the Customs Act, 1962 is not ousted from the purview of the Appellate Tribunal (CESTAT). Under the said circumstances, the Appellate Tribunal has rightly accepted the claim of interest made by the respondents and therefore, the Final Orders in question passed by the Appellate Tribunal are not liable to be set aside.

9. It is an admitted fact that Chapter 10 of Customs Act, 1962 deals with drawback amount, interest extra. 10. Even a glance of Section 129A of the Customs Act, 1962 would clearly show that the Appellate Tribunal has no jurisdiction with regard to any of the claim mentioned in Chapter X of the Customs Act, 1962. Since Section 129A of the Customs Act, 1962 has explicitly stated about the exclusion of Chapter X of the said Act and since only in Chapter X of the said Act drawback amount and interest have been mentioned, it is very clear that the Appellate Tribunal has no jurisdiction to deal with any matter arising out of interest.

11. In order to fortify the contention putforth on the side of the appellant, the following decisions are relied upon :-

(a) In 2009 (246) E.L.T. 646 (Tri.-Kolkata) [Mercury exports and Manufacturing private limited. v. Commissioner of Customs (Port), Kolkata].

(b) In 2001 (136) E.L.T. 217 (Tri.-Mumbai) (Premium Intertrade Private Limited v. Commissioner of Customs, Mumbai).

12. In both the decisions, the contention putforth on the side of the appellant has been clearly accepted in view of exclusion of Chapter X of the said Act from the purview of Appellate Tribunal as per provision of Section 129A of the said Act.” (emphasis supplied)

18. We are conscious that the concurrent jurisdiction of the Revisionary Authority as well as of this Tribunal to deal with orders relating to drawback, albeit arising from different hierarchical adjudicatory levels, at times, perplexes the party as to the forum before which they are to pursue their remedy, when aspects relating to valuation and classification also get intertwined. Occasionally, while pursuing such remedy before the revisionary authority, it may result in foreclosing the otherwise available appellate remedy before constitutional courts even for some deserving litigants. However, when Article 323B(1) of the Constitution read with Article 323B(3)(b) and entry 97 of list 1 of seventh schedule facilitates constitutional mandate/sanction for the legislature to hive out and assign to a revisionary authority the functions that are stated in Article 323B(2)(a); incorporation of statutory provisions such as Section 129DD of the Customs Act, 1962, in this regard can only be seen to be in accordance with such constitutional mandate; for inherent in the powers to specify, are also the powers to circumscribe, curtail or restrict. Legislature is in the best position to understand and appreciate the needs of the people as enjoined in the Constitution. There is always a presumption in favour of constitutionality of such provisions legislated. Therefore, such litany of travails are not ones that the Tribunal, a creature of statute, can address by usurping a jurisdiction under any misconceived notion of that being its responsibility while functioning as sentinel on the qui vive for rendering justice. We are loath to embark on any such attempt and therefore refrain from doing so.

19. Given the discussions made above and in light of the aforesaid view of the Jurisdictional High Court holding that Section 129A of the Customs Act, 1962 has explicitly stated about the exclusion of Chapter X, and further since the Honourable High Court has also granted its imprimatur to the decision in Premium Intertrade Pvt Ltd v CC, Mumbai, 2001 (136) ELT 217 (Tri- Mumbai) that the phrase “payment of drawback” used in the proviso to Section 129A would prevent the Appellate Tribunal from dealing with cases involving recovery of drawback, in adherence to such binding precedents, we too hold that the jurisdiction of the Tribunal is ousted in the present matters and the defect raised by the Registry is in order.

20. Hence, we hold that the appeal filed is not maintainable and cannot be entertained and is dismissed for want of jurisdiction. The connected appeal papers filed by the Director of the company is also disposed as not entertainable for want of jurisdiction. Ordered accordingly.

(Order pronounced in open court on 12. 03. 2025)