Order Date – 12 December 2023

Parties: M/s Sans Frontiers Vs Commissioner of Customs, Air-Cargo Export 

Facts –

• The Petitioner, M/s Sans Frontiers, operates a 100% Export Oriented Unit. They claimed duty draw back during the period from 2007-08 to 2013-14, on the basis of various shipping bills. 
• The department were of the view that in terms of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, the duty draw back is not available to the petitioner. Hence the petitioner was called upon to the duty draw back availed along with interest and the same was deposited.
• The petitioner filed an appeal against such deposit and the learned CESTAT sanctioned refund of amount deposited. The department contented that the e learned CESTAT does not have jurisdiction to adjudicate the issue of payment of Drawback recovered by the Revenue.

Issue –

• whether the learned CESTAT can pass the judgment in respect of a case falling under proviso (c) of Section 129A(1)(b) of the Customs Act?

Order –

• The Divisional Bench of Hon’ble High Court observed that even though proviso (c) of Section 129A(1) of the Customs Act mentions the word “payment”, the same would also include the recovery of the Drawback. This is because whether it is the claim for payment or the claim of the Revenue for recovery, both would include an adjudication on merits, that is, the eligibility and entitlement of the assessee for the Duty Drawback on the exports made by it.
• 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.
• It is well-settled that the order passed by a Court, which does not have the subject matter jurisdiction to adjudicate the issue, would be a nullity. No consent, waiver or acquiescence can confer jurisdiction upon a Court, which is otherwise barred by the statute. The order, passed by a Court having no jurisdiction, is non est and its invalidity can be set up at any stage and in any proceedings. Hence it was held that the appeal preferred by the Firm before the learned CESTAT was not maintainable and the order passed by the Tribunal is thus void ab initio.
• In the peculiar facts of this case where the Revenue originally had not taken any objection on the appeal being heard by the learned CESTAT, and had also, following the order of the learned CESTAT, sanctioned refund of the Drawback, the Firm should not be left remediless. Therefore, the Firm was granted an opportunity to prefer a revision, under Section 129DD of the Customs Act, against the order dated 14.05.2018 passed by the Commissioner (Appeals).