CC, TIRUCHIRAPALLI Vs. ULTRA MARINE AND PIGMENTS LTD.

JUDGEMENT

(1.) THIS is a Revenue appeal against Order -in -Appeal dated 16.12.1997 in C. Cus. 1493/97 by which the Commissioner (Appeals) has agreed with the assessee's contention that there is sufficient evidence on record to show that they had received 886 bags short than the quantity for which they had paid duty. He has held that they are entitled for refund of short -landed cargo under Section 23 of the Customs Act 1962 and that the question of unjust enrichment would not arise in the case as the refund amount relates to quantity which was short -delivered. The preliminary objection was raised with regard to the jurisdiction of the Tribunal to take up matters which pertain to short -landing as the same was not within the purview of the jurisdiction in terms of Section 129A(1) read with first proviso to Sub -Section (1) of the Customs Act which specifically excludes jurisdiction pertaining to short -landing. The Revenue had filed a revision Petition before the Revision Authority, Government of India, who without examining the provisions had merely returned the papers but as the matter pertains to refund on short -landing, therefore the matter has to be heard by the Jurisdiction. In this regard, he relied on some Board's Circular also.

(2.) LEARNED Advocate submits that the basic issue and the cause of action is short -landing of Cargo and the authorities of first two examined the evidences and thereafter arrived at finding with regard to the evidence on record pertaining to short -landing. Only when the evidence is accepted by the authorities, the question of granting refund arises. It is his submission that it is not a case of refund per se but it is connected with the short -landing and hence the Tribunal's jurisdiction is ousted in terms of the provision already quoted. In this regard he relies on the judgment of the Tribunal rendered in similar circumstances in the case of India Pistons Limited v. Assistant Commissioner of Central Excise, Chennai as reported in : 1987 (27) ELT 651 and that of Atlas Copco India Limited v. CCE as reported in, 1998 (88) ELT 122. On a careful consideration of the submission and on perusal of these judgments, we are satisfied that the issue requires determining the question of short -landing in the light of the evidences produced by the party. Only when this question is answered, the question of granting refund on such short -landing arises. Therefore it is not a case of mere issue of refund by the Revisional authority. The jurisdiction of the Tribunal is clearly ousted in the present case in terms of the provisions already quoted and this view has been confirmed in view of the judgment already cited. Taking these judgments into consideration, we hold that the Tribunal has no jurisdiction to take up these matters and hence the appeal of the Revenue is rejected on that ground.