1. Thr Revision Application filed before the Government of India against the Order-in-Appeal bearing No. S/49/636/81 Dbk dated 21-9-1981 passed by the Appellate Collector of Customs, Bo'mbay, statutorily stood transferred to the Tribunal fcr being heard as an appeal.
2. The appellant's claim for drawback made after the expiry of two years under Section 74 of the Customs Act was rejected by the Assistant Collector as inadmissible. On appeal, the Appellate Collector confirmed the order passed holding that the rejection was rightly done.
3. During the hearing of this appeal, Shri D'Silva, appearing for the appellant submitted that their export was after the expiry of - two years. They had however made an application to the Board for extension of time, but the Board did not grant extension. He submitted that the Board did not pass any speaking order, and therefore, the appellant could not file an appeal or revision before the Government of India.
Further, the provisions then existing did not provide for any appeal or revision against the order passed by the Board. Shri D'silva conceded that there is no illegality in the orders passed by the Assistant Collector and the Appellate Collector.
4. After hearing Shri D'silva we did not call upon the departmental representative to address arguments. The export under Section 74 shall have to be made within two years from the date of payment of duty on importation. Admittedly, the export was after the period of two years.
Proviso to Sub-section (1) of Section 74 vested discretion in the Board to extend the period of two years if sufficient cause was shown to the satisfaction of the Board. The appellant have submitted that they did make an application for extension, but the Board did not grant extension. The inference to be drawn is that the Board was not satisfied that the appellant had sufficient cause for not entering the exports within a period of two years. Though the Act did not provide for any appeal or revision against that order of the Board the appellant probably could have taken up the matter administratively before the Government of India. The appellant did not choose to adopt that course.Whatever it be, the power conferred on the Board under the proviso is a discretionary power. In the absence of any allegations of mala fide or arbitrariness on the part of the Board there is no scope to interfere with the discretion exercised by the Board. In any case, there was no appeal or revision against the order of the Board.
5. Both the authorities below had rejected. the claim on the ground that the export was not made within two years from the date of payment of duty on importation. The orders of the authorities below do not suffer from any legal infirmity. In the circumstances we see no reason to interfere with the orders.
7. While I entirely agree with the conclusion arrived at by my learned brother, the Judicial Member, in finding that the appeal fails and while I also agree with him that the appeal is to be rejected, I cannot refrain from adding this note to the order. It is not my normal practice to say something in addition to the order dictated by my learned brother when I agree with the conclusions. But in the present case I have to make a departure from the normal practice for very important considerations. These relate to certain observations made in the order above. Firstly, it creates an impression that M/s. Bayer (India) Limited could have filed an appeal to the Government of India against the Board's order turning down their request for extension for the period of reshipment beyond two years in terms of the proviso to Section 74(1) of the Customs Act. The appellants have clarified that they made their request through the Customs House and not directly to the Board. Even if a direct request had been made to the Board, the power vested in the Board under the aforesaid provisions was discretionary as observed by my learned brother; but in exercising this power, the Board do' not assume any quasi judicial functions, and therefore, there cannot be any appeal against an order of the Board in terms of these provisions. Besides, M/s. Bayer (India) Limited have actually filed a revision application to the Government of India against the Appellate Collector of Customs order which has been transferred to us as mentioned in para 1 of the order. Since the Government of India could also exercise the powers vested in the Board under the proviso to Section 74(1) of the Customs Act, there was no such need for making a separate appeal by the appellant to the Government of India against the Board's decision in terms of Section 74(1) proviso. Secondly, it has been observed that the Board's decision was not mala fide or arbitrary as no such allegations have been made by the present appellant. Hence it has been concluded that there is no scope to interfere with the discretion exercised by the Board.
Conversely, the observations are apt to be construed that had there been any allegations or arbitrariness or mala fides, it would have been open to this Tribunal to interfere in the matter. Such a conclusion is not warranted by the provisions of law. Under Section 74(1) all the powers of granting extension in the period of reshipment have been specifically vested in the Board. It cannot, therefore, be proper and legal for this Tribunal to exercise the Board's power in terms of the aforesaid provisions. Besides, only the Board's orders of the type specified under Section 129E are appealable to this Appellate Tribunal.
The order in question does not fall within the scope of Section 129A, and hence, such an order is not appealable to the Tribunal. Therefore, even if such an order be arbitrary or mala fide, the remedy against such an order will lie elsewhere than with the Tribunal. With these remarks I come back to the conclusion reached by my learned brother, and reject the appeal.