JUDGMENT
Archana Wadhwa
1. After hearing Shri K.P.Dey, ld.adv. appearing for the appellant and Shri A.K.Chattopadhyay, ld.JDR appearing for the Revenue I find that the Asst.Commissioner of Customs, Manifest Clearance Department, Customs House, Calcutta rejected the appellants’ claim for refund of duty deposited by them for clearance of 76 cartons of toys motors on the ground that there was a shott landing of 75 cartons. The said refund claim was rejected on the point of time bar. An appeal against the above order was filed before the Commissioner(Appeals), who also rejected the refund claim in terms of section 27 of the Customs Act 1962 by observing that there was enough time with the appellants to file the refund claim even after intimation of short landing report. The appellants filed an appeal against the above order before the Govt. of India as revision application.
2. However, it is seen that the Joint Secretary to the Govt. of India vide his order dt.27.2.2001 held that the revision does not lie before the Central Govt. against the said order of the Commissioner(Appeals) inasmuch as there is no evidence that the goods in this case short-landed and there is no proceeding under section 116 of the Customs Act, 1962. Accordingly he returned the papers to the appellants for filing an appeal before the Tribunal.
3. After considering the issue, I find that as per the provisions of section 129A, proviso of the Customs Act, 1962, the Appellate Tribunal dos not have any jurisdiction to deal with the appeals arising out of the order of Commissioner (Appeals), if such order relates to short-landing. Admittedly the appellants’ claim for refund of duty deposited by them is on account of short-landing of the goods. In fact it is seen from the impugned orders that short landing is not disputed and their refund claim is being rejected on the point of time bar. As such it is not understood as to how the revision authorities has refused to entertain the revision application, hen admittedly in terms of proviso (b) to section 129A, the revision application against the order passed by Commissioner(Appeals) lies before him. In fact that provisions of section 116 of the Customs Act, 1962 referred to by the Joint Secretary in his order dt.27.2.2001 have no application.
4. Inasmuch as the issue admittedly relates to short-landing of the goods, I am of the view that the revision application is required to be entertained by the Govt. of India. Accordingly I direct the registry of return the said papers to the appellant for filing the said before the Govt. of India as a revision application.
5. Dictated in the court.