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2018 (4) TMI 920 - AT - CustomsMaintainability of appeal before Tribunal - 100% EOU - issue of payment of Duty Drawback - case of Revenue is that this is a case of claim of drawback and therefore, the appeal is not maintainable before the Tribunal, in terms of proviso (1) to Section 129A of the Customs Act - whether the appeals are maintainable before this Tribunal or not? - Difference of Opinion - majority order. Held that: - Section 129A of Customs Act, 1962 bars the jurisdiction of the Tribunal in respect or any order which relates to, among other things, payment of drawback. If the order impugned before the Tribunal relates to payment of drawback, the Tribunal will not have jurisdiction to decide the same - in the impugned order, has decided the issue whether the appellant is 100% EOU or not, and since the appellant has made the same plea in the present appeal, the present appeal is maintainable in terms of Section 129A. Duty Drawback - 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. The present case will fall within the category of orders against which the appellate jurisdiction of the Tribunal is barred. In view of the decision of the third Member, the appeal is not maintainable before the Tribunal as the same is barred by provisions of Section 129A of Customs Act, 1962
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