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744 EXCISE LAW TIMES [ Vol. 372

they had inadvertently claimed drawback against the impugned Shipping bills
since they had ‘worked on human hair which were exported. Test from the CSFL
laboratory also confirm that the human hair are worked and hence rightly classi-
fiable under RITC 6703. Thus the contention of the Commissioner (Appeals) that
classification of the impugned export goods prior to 2012 cannot be challenged as
there were no samples drawn from the respective consignments is not tenable. It
is observed that the respondent has been exporting the identical goods since 2011
bearing the same description. At no stage have they brought forth any evidence to estab-
lish that there has been any change in the description warranting change in classification
of the impugned goods. In the light of this, Government is of the view that the hu-
man hair exported in respect of 114 Shipping Bills prior to 12-12-2012 are rightly
classifiable under RITC 6703 and not under RITC 05010010.
6. The respondent has contended that after completion of assessment
under Section 17 of the Customs Act, 1962 except for the cases where the goods
are assessed provisionally, an appeal was required to be filed before the appel-
late authority challenging the classification of the goods which was not done in
this case by the applicant. The applicant issued a Show cause Notice for the re-
covery of erroneously paid drawback which is not the correct course of action as
per the provisions of Customs Act, 1962. Government is of the view that the re-
spondent’s plea is not maintainable at this stage as this issue was never raised
before the Commissioner (Appeals) and there are no findings on this aspect in
the Order-in-Appeal.
7. As far as the respondent’s other argument that the revision applica-
tion filed by the applicant is time-barred is concerned it is observed that as per
Section 129DD(2) of Customs Act, 1962 the application under sub-section (1) i.e.
Revision application can be made within 3 months from the date of communica-
tion to the applicant of the order against which the application is being made.
However, proviso to sub-section (2) provides discretion to allow the applicant to
present the application within a further period of 3 months if the Government is
satisfied that the applicant was prevented by sufficient cause from presenting the
application within the normal period of 3 months. Applicant had wrongly filed
an appeal in CESTAT against the impugned Order-in-Appeal. If the period con-
sumed in pursuing the appeal before CESTAT is excluded, it is observed that the
applicant had taken 168 days in filing the Revision Application i.e. 90 days for
filing the appeal with CESTAT usually which should have been Revisionary Au-
thority in ordinary course and subsequently 78 days in filing before Revisionary
authority after dismissal of appeal by tribunal. Therefore, the Government is of
the view that this delay is only on account of filing the appeal before the wrong
forum and seems to be bona fide mistake and is condonable and hence allowed in
terms of Section 129DD(2) of Customs Act, 1962.
8. As far as the power of Commissioner (Appeals) to remand the case
back to the original authority is concerned it observed that the remand powers of
Commissioner (Appeals) stands withdrawn with effect from 11-5-2001 vide
Finance Act of 2001. Hon’ble Supreme Court in its judgment dated 1-7-2007 in
Civil Appeal No. 6988/2005 in the case of M/s. MIL India Limited [2007 (210)
E.L.T. 188 (S.C.)] has noted the provisions of amended law, which is reproduced
below :

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