SYED AIZAZ AHMED Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) THERE is a delay of 10 days in the filing of the captioned appeal and the same has been satisfactorily explained by the appellant. The COD application is, therefore, allowed.

(2.) THE next application filed by the appellant seeks waiver of pre -deposit and stay of recovery in respect of a penalty of Rs. 5,00,000/ - imposed on him. At this stage, the learned Superintendent (AR) raises a jurisdictional objection which is to the effect that this Tribunal has no jurisdiction to deal with this case involving a baggage which was attempted to be exported by the appellant, seized by the Customs authorities and eventually confiscated by the adjudicating authority. According to the learned Superintendent (AR), this case is covered by clause (a) of the first proviso to sub -section (1) of Section 129A of the Customs Act and hence cannot be entertained by this Tribunal. According to her, the statutory remedy available to the appellant against the impugned order is revision by the Central Government under Section 129DD of the Customs Act. In this connection, reliance is placed on the decision rendered by a learned Single Member of this Tribunal in the case of Metal Concepts (India) v. Commissioner of Central Excise, Belapur [2010 (259) E.L.T. 65 (Tri. -Mumbai)] wherein certain appeals filed by the party against an order of the Commissioner (Appeals) dismissing their appeals for non -compliance with Section 35F of the Central Excise Act were held to be not maintainable after noting the fact that the subject matter of the appeals was a rebate claim. The learned Single Member took the view that the order of the Commissioner (Appeals) related to rebate claim and was not appealable to this Tribunal. According to the learned Superintendent (AR), the cited decision is squarely applicable to the instant case and the appeal and stay application should be dismissed as not maintainable.

(3.) THE learned counsel for the appellant, on the other hand, claims support from Final Order No. 25004/2013, dated 11 -1 -2013 passed in Appeal No. E/2345/2010 (M/s. Disha Foods Pvt. Ltd. v. Commissioner of Central Excise, Hyderabad) [2013 (291) E.L.T. 61 (Tri.)] by one of us sitting singly. In the cited case, the respondent raised a similar objection by submitting that the impugned order passed by the Commissioner (Appeals) related to a rebate claim and hence not appealable to this Tribunal as it was barred by clause (b) of the first proviso to sub -section (1) of Section 35B of the Central Excise Act. It was further submitted that the Appellate Commissioners order could only be revised by the Central Government under Section 35EE of the Act. In the cited case, the appeal had arisen from the Appellate Commissioners order rejecting an appeal of the assesssee filed against the original authoritys rejection of the rebate claim. The appeal was rejected by the Commissioner (Appeals) on the sole ground of delay. After examining the provisions of Section 35B of the Central Excise Act (Appeals to the Appellate Tribunal) and Section 35EE of the Act (Revision by Central Government), the Single Member entertained the appeal, condoned the said delay, set aside the Appellate Commissioners order and remanded the substantive issue to be considered by the Commissioner (Appeals) on merits. According to the learned counsel, the decision rendered in the case of Disha Foods Pvt. Ltd. is squarely applicable. He has also referred to Mercedes Benz India Pvt. Ltd. v. Union of India [2010 (252) E.L.T. 168 (Bom.)] wherein the Honble High Court of Bombay set aside an order of the Mumbai Bench of the Tribunal on the ground of impropriety and directed the Bench to re -decide the substantive issue after considering afresh the applicability of certain order passed by a Co -ordinate Bench on a similar issue. The Honble High Court observed that, in case the Tribunals Mumbai Bench was inclined to take a view contrary to the one taken by the Co -ordinate Bench, judicial discipline required reference of the issue to a Larger Bench. The Honble High Court kept all rival contentions open and refrained from examining the merits of the substantive controversy. The Court was disposing of a Writ Petition filed by the party.