2013 (9) TMI 138 - AT - Customs

Tribunal rules on appeal jurisdiction for Customs Act provisional release orders

AKANKSHA SYNTAX PVT. LTD. Versus COMMR. OF CUS. (GENERAL), MUMBAI

The Tribunal, in a majority decision, held that appeals against orders of provisional release under Section 110A of the Customs Act are maintainable ... Appeal of order - Whether an order passed by the Commissioner of Customs u/s 110A can be appealed against before the Tribunal - Held that:- appeal was not maintainable before the Tribunal against the order u/s 110A of provisional release of goods pending the order of adjudication – relying upon Shanti Alloys Pvt. Ltd. v. CC, Bangalore [1999 (8) TMI 467 - CEGAT, MADRAS] - The order in respect of provisional release of the goods was an interim order pending order of the adjudicating authority and the appeal was not maintainable before the Tribunal - The judicial proprietary demands that the decisions of the Divisional Bench was to be followed in preference over the decision of the Single Member which was passed without taking into consideration the earlier decision passed by the Division Bench. Any goods, documents or things seized under Section 110, may, pending the order of the adjudicating authority, be released to the owner on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require - the adjudicating authority can release the goods seized u/s 110A on taking a bond from him in the proper form with such security and conditions - Decided against assesse. Issues Involved:1. Maintainability of the appeal against the order of the Commissioner of Customs under Section 110A of the Customs Act, 1962.2. Interpretation of Section 110A of the Customs Act, 1962.3. Applicability of amended provisions of Section 110A (w.e.f. 8-4-2011).4. Jurisdiction of the Tribunal under Section 129A(1) of the Customs Act, 1962.Issue-wise Detailed Analysis:1. Maintainability of the appeal against the order of the Commissioner of Customs under Section 110A of the Customs Act, 1962:The central issue was whether an appeal against the order of the Commissioner of Customs for provisional release of goods under Section 110A of the Customs Act is maintainable before the Tribunal. The learned counsel for the applicant argued that such an appeal is maintainable, citing precedents like Swiber Offshore Construction Pte. Ltd. v. CC(I), Mumbai and Indoworth (India) Ltd. v. UOI. Conversely, the respondent relied on Navshakti Industries Pvt. Ltd. v. CC, New Delhi, which held that orders under Section 110A cannot be treated as adjudication orders and thus are not appealable before the Tribunal.2. Interpretation of Section 110A of the Customs Act, 1962:Section 110A provides for the provisional release of goods, documents, and things seized pending adjudication. The provision allows the adjudicating authority to release seized goods on taking a bond with security and conditions as required. The Tribunal examined whether the provisional release order under Section 110A could be appealed. The Tribunal noted that the provisional release issue was previously considered in cases like Swiber Offshore, where the appeal was entertained and conditions modified, and in Dhananjay Kumar v. CC (I), Nhava Sheva, where the appeal was deemed maintainable.3. Applicability of amended provisions of Section 110A (w.e.f. 8-4-2011):The Tribunal acknowledged that the provisions of Section 110A were amended by the Finance Act, 2011, substituting 'Commissioner of Customs' with 'adjudicating authority.' This amendment was pertinent because it clarified that the adjudicating authority, not just the Commissioner, could order provisional release. The Tribunal observed that the amended provisions were applicable to the facts of the present case, thereby supporting the argument that appeals against such orders could be maintainable.4. Jurisdiction of the Tribunal under Section 129A(1) of the Customs Act, 1962:Section 129A(1) allows any person aggrieved by a decision or order passed by the Commissioner of Customs as an adjudicating authority to appeal to the Tribunal. The Tribunal considered whether provisional release orders under Section 110A fell within this scope. The Tribunal noted that the definition of 'adjudicating authority' includes any authority competent to pass any order or decision under the Act. Given that provisional release orders are passed under Section 110A, the Tribunal concluded that such orders could indeed be appealed under Section 129A(1).Majority Decision:The Tribunal, by a majority decision, held that the appeal against the order of provisional release passed by the adjudicating authority under Section 110A of the Customs Act, 1962, is maintainable before the Tribunal. The Tribunal directed the Registry to list the appeal for final disposal, dismissing the preliminary objection raised by the Revenue regarding the maintainability of the appeal.Dissenting Opinion:One member dissented, arguing that the appeal against an order of provisional release under Section 110A is not maintainable before the Tribunal. The dissenting member relied on the decision in Navshakti Industries Pvt. Ltd., which held that provisional release orders are interim and not in the nature of adjudication, thus not appealable.Conclusion:In conclusion, the Tribunal, by majority, decided that appeals against provisional release orders under Section 110A are maintainable, supporting this view with references to relevant case law and statutory interpretation. The dissenting opinion, however, maintained that such appeals are not within the Tribunal's jurisdiction. The appeal was ultimately dismissed as not maintainable by the majority decision.