of

Commissioner (Appeals) on the issue relating to drawback is not

maintainable before this Tribunal. He refers to the decision of

the Delhi Bench of the Tribunal in the case of Avanti Overseas

Pvt. Ltd. [2018 (363) ELT 969 (Tri.-Del.)] that such appeal cold

have been filed only before the Revisionary Authority of the

Government of India.

3.3

Learned counsel submits that this appeal is in respect of a

case of demand for the drawback erroneously paid and is filed

against the order of Commissioner (Appeals).

4.1

I have considered the impugned order along with the

submissions made in appeal and during the course of arguments.

4.2

In the case of Avanti Overseas Pvt. Ltd. [2018 (363) ELT

969 (Tri.-Del.)] relied upon by the learned AR, by the majority,

following has been held:-

“12. [Order per : B. Ravichandran, Member (T)]. - I have

perused the Final Order proposed by the Ld. Member (Judicial).

With due regard, I am not able to accept the Final Order

recorded by the Ld. Member (Judicial) with reference to

admissibility of the present appeal before the Tribunal. The

reasons for my disagreement are recorded as below :

(a) The present proceedings emanated by issue of SCN dated

4-9-2014 by the Joint Commissioner of Customs (ICD),

Tughlakabad. The SCN proposed a denial of drawback amounting

3

to Rs. 6.91 crores and sought to recover the same under the

provisions of Rule 16 of Customs and Central Excise Duties

Drawback Rules, 1995.

(b) The notice was decided by the original authority vide order

dated 19-10-2015. The original authority held that the drawback

amounting to Rs. 6.91 crores is to be denied and the amount

already sanctioned was ordered to be recovered under Rule 16

ibid. The order also decides regarding confiscation of goods and

penalties on the appellant.

(c) The Commissioner (Appeals), vide impugned order dated

10-7-2016, upheld the original order. He categorically held that

drawback as claimed by appellant is not available to them as

held by the original authority.

(d) Drawback Rules, 1995 were framed in terms of Section 75

of Customs Act, 1962 which falls under Chapter X of the Act.

(e) Section 129A of the Act deals with appeals to the Tribunal.

The relevant portion of the said Section is as below :

“No appeal shall lie to the Appellate Tribunal and the 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) … … … …

(b) … … … …

(c) Payment of drawback as provided in Chapter X, and the

rules made thereunder.”

(f) Commissioner (Appeals) in the impugned order interpreted

Notification No. 68/2007-Cus. (N.T.) which deals with drawback

eligibility to the exporters.

13. The above factual deals will make it manifestly clear that

the present dispute is essentially with reference to drawback

claim filed by the appellant and is clearly barred for appeal

before the Tribunal in view of the above statutory provisions. It

is clear that the primary dispute is not with reference to the

status of the appellant, whether 100% EOU or not, though the

4

same is the basis for resolving the dispute with reference to the

claim of the appellant for drawback. The evidence or reason for a

decision by itself cannot be considered as point of dispute. In

other words, it is the claim of the appellant for drawback which

is the point of dispute and the basis or evidence for resolving

such dispute cannot alter the nature or essence of dispute.

14. With due regard, I also find that the case laws referred to

by the Ld. Member (Judicial) have no application to the facts

which are narrated above. It is noted that while examining an

appeal by the Revenue in DCS International Trading Company

(P) Ltd. - 2017-TIOL-2093-CESTAT-DEL, the Tribunal relying on

various earlier decisions held that when the main issue is export

rebate which may be linked with some other issues, the Tribunal

has no jurisdiction to take up the appeal against the order of

Commissioner (Appeals). It was held that