9911796707
TMI Blog2023 (12) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 15.07.2020 (hereafter 'the impugned SCN') issued by the respondent [Commissioner of Customs (Exports)] demanding recovery of Duty Drawback amounting to Rs.54,72,204/-, which according to the respondent was erroneously sanctioned and paid to the Firm. 3. The Firm also impugns the notice dated 06.07.2021 (hereafter 'the impugned notice') issued under Section 128A(3) of the Customs Act, 1962 (hereafter 'the Customs Act') calling upon the Firm to show cause why the refund order dated 10.02.2020 passed by the Deputy Commissioner (Drawback), ACC Export Commissionerate, not be annulled or any other order as deemed fit be passed by the Appellate Authority. 4. The refund of the Duty Drawback was sanctioned pursuant to the order dated 02.11.2018 passed by the learned Customs Excise and Service Tax Appellate Tribunal (hereafter 'the learned CESTAT'). The Revenue has preferred the above captioned appeal (CUSSA No. 1/2022) impugning the said order along with applications seeking condonation of delay in filing and re-filing the said appeal. 5. The controversy in the above-captioned matters relates to the refund of a sum of Rs.54,80,710/- comprising of Rs.26,15,942/- being the duty dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the same issue of the Drawback availed by the Firm. It was alleged that the drawback was inadmissible under the regulations relating to All Industry Drawback and the Drawback Rules, which prohibit Drawback on export of goods manufactured or exported by a unit licensed as 100% EOU in terms of the relevant Export and Import Policy and Foreign Trade Policy. The said SCN further called upon the Firm to show cause as to why the goods of the declared FOB should not be confiscated under Section 113(h)(ii) of the Customs Act (which provides for confiscation of goods attempted to be improperly exported) read with Section 11 of the Foreign Trade (Development & Regulation) Act, 1992, and Rules 11 and 14(2) of the Foreign Trade (Regulation) Rules, 1993 (which provides for confiscation of goods in case of contravention of the Foreign Trade Policy). The SCN also called upon the Firm to show cause as to why a penalty should not be imposed under Section 114(iii) of the Customs Act (which prescribes the penalty for attempt to improperly export goods making them liable for confiscation under Section 113 of the Customs Act). 12. The learned Joint Commissioner of Customs, Air Cargo Export C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Firm claimed that the Commissioner (Appeals) had noted that the Firm had voluntarily deposited the wrongly availed Duty Drawback and had, therefore, reduced the amount of penalty from Rs.15,00,000/- to Rs.5,00,000/-. It was submitted that there was no suppression of any fact, and hence, no penalty should have been imposed. 16. The Firm also raised an issue that the SCN dated 24.08.2015 was beyond the period of limitation. The learned CESTAT, by the order dated 02.11.2018, set aside the order passed by the Commissioner (Appeals), holding that the extended period of limitation was not available to the Revenue as the Firm had deposited, on being pointed out, the amount of Duty Drawback. 17. Pursuant to the order dated 02.11.2018, passed by the learned CESTAT, the Firm filed an application dated 12.07.2019, seeking refund of the amount, which it had deposited with the Revenue. The concerned Authority, thereafter, issued a refund order dated 10.02.2020. 3rd Demand regarding the Drawback 18. On 15.07.2020, the impugned SCN was issued to the Firm regarding the availed Drawback stating that the learned CESTAT had no jurisdiction to decide any appeal in respect of any order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Demand-cum-Recovery letter dated 12.03.2014 on the same issue, which had been set aside by the learned Commissioner (Appeals) by order dated 19.06.2014. He contended that since the order dated 19.06.2014 had not been appealed by the Revenue, the same had attained finality. 28. The learned counsel further contended that in violation of judicial discipline, the concerned Authority had issued the SCN dated 24.08.2015 on the same subject. 29. The learned counsel also contended that subsequent proceedings on the same issue were barred by the doctrine of res judicata under the relevant provisions of Section 11, Code of Civil Procedure, 1908. 30. The learned counsel submitted that the SCN dated 24.08.2015 was barred by limitation, since the same was issued more than a year after 19.06.2014. It was submitted that since the said SCN itself was barred by time, subsequent adjudication orders dated 31.07.2017 and 14.05.2018 leveling penalty and interest were also null and void. It was submitted that thus no amount could have been appropriated suo motu as the demand itself was time barred. 31. The learned counsel submitted that the decision of learned CESTAT was accepted as mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s preferred before the Commissioner of Customs (Appeals) for setting aside the said refund order. Pursuant to this, the impugned SCN was issued against the sanctioned refund on the ground that the learned CESTAT did not have the jurisdiction to adjudicate on a matter relating to payment of Drawback in terms of proviso (c) under Section 129A(1) of the Customs Act. 39. The learned counsel contended that there was no breach of limitation or judicial discipline as the impugned SCN was issued for recovery of the Drawback amount sanctioned vide an order dated 10.02.2020. 40. The learned counsel submitted that the doctrine of waiver does not apply in cases where there is an explicit bar in the Customs Act itself. He stated that it is trite that there cannot be any concession in law. 41. The learned counsel submitted that the Commissioner of Customs (Appeal) reviewed the refund order dated 10.02.2020 and granted concurrence for filing an appeal before this Court on 11.08.2020. 42. The learned counsel contested the contention that the learned CESTAT committed a grave jurisdictional error in deciding the appeal of the Firm as even though the appeal had been filed for annulment of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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" 48. It is contended on behalf of the Revenue that in terms of proviso (c) of Section 129A(1) of the Customs Act, the learned CESTAT did not have the jurisdiction to decide any appeal in respect of any order relating to payment of Drawback, as provided in Chapter X of the Customs Act. Chapter X of the Customs Act comprises Section 74 to 76 of the Customs Act, which are the provisions that provide for drawback being available on the goods exported out of India. 49. The Firm, however, contended that the appeal was filed in relation to the penalty imposed, and not in relation to any claim for the Drawback. Therefore, the same was maintainable under Section 129A of the Customs Act. 50. The learned counsel for the Firm submitted that the jurisdiction of the learned CESTAT is not excluded if the appeal is in relation to recovery of Drawback that has already been sanctioned. He further submitted that the jurisdiction of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai. 56. It is important to note that the Drawback was deposited by the Firm voluntarily after the letter dated 12.03.2014. Therefore, the issue before the learned CESTAT, to that extent, was not the recovery of the Drawback, but the payment of Drawback recovered by the Revenue. Thus, proviso (c) to Section 129A of the Customs Act, which excludes the jurisdiction of the learned CESTAT in regard to any claim mentioned in Chapter X of the Customs Act, acts as a bar against the learned CESTAT to adjudicate the said issue in the present case. 57. Another aspect, which cannot be ignored is that the appeal filed by the petitioner only relates to the imposition of penalty. The prayer sought for before the learned CESTAT is reproduced as under: "The appellants respectfully pray that the penalty may be set aside with consequential relief. Any such relief(s) as may be considered appropriate by Hon'ble Tribunal, be also granted." 58. The learned CESTAT by its order dated 02.11.2018 has held the SCN dated 24.08.2015 to be time barred, even though, in our opinion, the only relief being claimed was in regard to the imposition of penalty. The entire SCN dated 24.08.2015 could not have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity. 31. In Halsbury's Laws of England, (4th Edn.), Reissue, Vol. 10, para 317, it is stated: 317. Consent and waiver.-Where, by reason of any limitation imposed by a statute, charter or commission, a court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court, nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled. Where the court has jurisdiction over the particular subject-matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the court ought to exercise jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under section 128A" includes an order passed under that section before the commencement of section 40 of the Finance Act, 1984, against which an appeal has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commencement, to the Appellate Tribunal." 67. It specifically provides that such orders of the Commissioner (Appeals), which are not appealable before the Appellate Tribunal, can be subject matter of revision by the Central Government. Any person aggrieved by such order can file an application with the Central Government. The Central Government has the power to annul or modify the order passed by the Commissioner (Appeals). 68. There is merit in the contention that the Revenue's appeal is grossly delayed. However, the principal controversy sought to be raised is regarding the jurisdiction of the learned CESTAT to entertain the Firm's appeal. Although, Revenue had not filed an appeal against the order dated 02.11.2018 within the stipulated time, the concerned authority has taken the steps for reviewing the consequential steps taken pursuant to the said order which is impugned in the said app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Drawback along with interest which was alleged to have been wrongly availed by it. The learned CESTAT did not decide the Firm's entitlement to duty drawback. 74. It is important to note the Firm's case that it had deposited the Duty Drawback along with interest immediately on receipt of the letter dated 12.03.2014. The Firm had thereafter appealed the said letter dated 12.03.2014 before the Commissioner of Customs (Appeals). The said Commissioner of Customs (Appeals) had allowed the said appeal by an order dated 19.06.2014. It is material to note that the Revenue had contested the said appeal on the ground that the written communication dated 12.03.2014 was not an appealable order. The learned Commissioner of Customs (Appeals) had rejected the said contention on the ground that the Firm had made payments pursuant to the written communication dated 12.03.2014, and hence, the same was appealable under Section 128(1) of the Customs Act. The learned Commissioner of Customs (Appeals) had also granted the consequential relief to the Firm. 75. The order of learned CESTAT did not direct issuance of any refund but merely set aside the SCN dated 24.08.2015 which was issued invoking the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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