Appeal not maintainable where drawback entitlement dispute dependent on assessee’s EOU status

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Third Member rules on maintainability of appeal before CESTAT where question of entitlement to duty drawback depended on status of assessee – whether it is EOU or not; While Member (Judicial) held that appeal was maintainable inasmuch as Commissioner (Appeals) decided on issue of assessee’s status, Member (Technical) was of the view that dispute was essentially with reference to drawback claimed by assessee and hence, clearly barred by statutory provision of Section 129A of Customs Act; Applies ratio laid down by 3 Member bench in Jindal Stainless Steel Ltd wherein it was observed “in a situation where the main issue is export rebate covered by first proviso to Section 35B(1) and if for deciding the issue relating to export rebate, some other issues have also to be decided, the Tribunal would not have jurisdiction and that order of Commissioner (Appeals) can be challenged only before the Jt. Secretary (RA) by filing a revision application.”; Consequently, opines that to decide the issue of eligibility of drawback, it is first necessary to decide issue of status of assessee, for they are not totally independent issues; Highlighting that pith and substance of dispute in appeal is about payment of drawback, Third Member concludes that instant case would fall within category of orders against which appeal jurisdiction of CESTAT is barred and therefore, the Appellate Commissioner’s order could be challenged only before Revisionary Authority : Delhi CESTAT

Citation: [TS-117-CESTAT-2018-CUST]

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