TMI Blog2014 (1) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... mna G.H., Advocate, for the Appellant. Ms. Sabrina Cano, Superintendent (AR), for the Respondent. ORDER 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (252) E.L.T. 168 (Bom.)] wherein the Hon ble 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 Hon ble High Court observed that, in case the Tribunal s 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 Hon ble 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. 4. We have given careful consideration to the submissions. The challenge is against the Appellate Commissioner s order dismissing the assessee s appeal filed against an adverse order of the original authority, for non-compliance with Section 129E of the Customs Act. The learned Commissioner (Appeals) found that there was no pre-deposit of the adjudged dues nor any application for its waiver under Section 129E ibid. The appeal filed by the party, therefore, cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable and hence the same is liable to be dismissed. The impugned order, obviously, did not consider the baggage issue, nor did it refer to that issue in the operative part which was dedicated to the question whether the party s appeal could be maintained in the absence of pre-deposit. The learned Commissioner (Appeals) reproduced Section 129E ibid, observed that there was neither any pre-deposit nor any stay application by the appellant and held that the appeal was, therefore, not maintainable. The appeal thus came to be dismissed as not maintainable. It is this order which is under challenge to this Tribunal. The question is whether the order passed by the Commissioner (Appeals) is one covered by clause (a) of the first proviso to sub-section (1) of Section 129A of the Customs Act, which reads thus :- 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; The issue debated before us is whether the impugned order can be considered to be an order relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment under Section 129DD does not have it. The scheme of law requires a remand of this case to the Commissioner (Appeals) for decision on the baggage-related issue on merits. The scheme does not seem to foreclose or sidestep the Appellate Commissioner s jurisdiction to deal with the substantive issue on merits. Therefore, what emerges from a harmonious construction of the provisions of Section 129A and Section 129DD of the Customs Act is that the question whether the dismissal, by the Commissioner (Appeals), of the assessee s appeal filed against the Order-in-Original, for want of pre-deposit without having to examine the substantive issue on merits is sustainable in law has invariably to be handled by this Appellate Tribunal. 7. Think about a situation where this Appellate Tribunal dismisses the captioned appeal as not maintainable. Does the law enable the appellant to approach the Central Government with a prayer for remand to the Commissioner (Appeals) for decision on merits? The answer to this question is an emphatic no because the Central Government does not have the power to remand the case to the Appellate Commissioner. The Government may revise an order passed on merit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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