TaxTMI 
TaxTMI 
2015 (9) TMI 1368
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....lies before the Tribunal or not. 3. On behalf of the Revenue, the ld. AR submits that the issue has already been answered by the Larger Bench of this Tribunal in the case of Akanksha Syntax Pvt. Ltd. Vs. CCE Mumbai-2013 (289) ELT 186 (Tri-Bom) wherein it was held that against the order under section 110(A) of the Customs Act 1962 have provisionally released order that appeal is not maintainable before this Tribunal. The said order got merged in the case decided by the Hon'ble High Court reported in 2013 (296) ELT 178 (Bom). It is further submitted that the ratio laid down by the Larger Bench of this Tribunal in the case of Akanksha Syntax Pvt. Ltd. (Supra) has not been reversed by any of the following orders of Hon'ble High Court of Rajasthan and Hon'ble High Court of Delhi in the case of: a) Gentlemen Shootings Pvt. Ltd. in writ petition no.5318/2012 Rajasthan HC b) Giriraj Syntax Pvt. Ltd. in writ petition 4955/2012 Rajasthan HC c) Auto Creators Vs. UOI in writ petition (C)5600/2012 Delhi High Court. 3.1 It is further submitted that in the case of Amit Electronic Vs. CCE (Preventive)-2014 (309) ELT 60 (Delhi) the Hon'ble High Court has laid down the....
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....oblem disclosed by the facts, and; c) Judgment based at the combined effect on the above two. 4.2. Therefore, for the doctrine of precedent legal problem disclosed by the facts is a vital element and that is ratio decidendi. It is not everything said by a judge when giving judgment that constitute precedent. The only thing in a judge's decision binding a party is a principle upon which the case is decided and for this reason it is important to analyze decision and isolate from it the ratio decidendi. It is further submitted that Ratio decidendi can be summarized as follows: a) Opinion of the court on an issue not necessary for deciding dispute cannot be considered as ratio of that case. b) Ratio of a decision as is well known must by culled out from the facts involving in the given case. The decision is an authority for what it decides and not for what can logically be deduced there from. c) Only thing in the judge's decision binding the party is the principle upon which the case is decided and for these reasons it is important to analyse and isolate from it the ratio decidendi. d) Ratio decidendi is a rule deducible from the application of law to the fact....
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.... Bombay for some concession of provisional release of goods, that doesn't mean that Hon'ble High Court has decided issue of jurisdiction in that matter and the same has not been examined. Further, in the case of Akanksha Syntax Pvt. Ltd. (Supra) this Tribunal failed to consider the decision of Supreme Court in the case of Rajkumar Shivhare (Supra). Therefore, the said decision is per incuriam and cannot be relied upon. In these circumstances, it is prayed that appeals are entertainable by this Tribunal and conditions imposed by the Commissioner in the impugned orders are harsh and same may be relaxed by this Tribunal for provisional release of the impugned goods. 5. Heard the parties. Considered the submissions. 6. Before going to the merits of the case, first we have to decide the issue of maintainability of the appeal against the order under section 110 (A) of the Customs Act 1962. The main reliance of the Revenue is on the decision of Akanksha Syntax Pvt. Ltd. (Supra) of larger Bench of this Tribunal to say that appeal does not lie before this Tribunal. Therefore, we are analyzing the decision of Akanksha Syntax Pvt. Ltd. (Supra) wherein there was a difference of o....
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....r (Judicial) is correct and affirmed the issue in favour of Member (Judicial). But thereafter, the third Member took up the issue whether the appeal is maintainable before this Tribunal or not and hold that the provisional release order is an interim order pending order of the Adjudicating Authority and relied on the decision on Shanti Alloys Pvt. Ltd. Vs. Commissioner-2000 (123) ELT 643 (Tri) to hold that Tribunal is a creature of law and section 129 A(1) thereon clearly lays down that jurisdiction of Tribunal would only commence when order of Commissioner acting as Adjudicating Authority is agitated before it and further hold that the order of commissioner Custom is only interim order of provisional release / provisional assessment. Therefore, it was held that appeal against interim order is not maintainable before this Tribunal. 6.3. We have seen the provision of section 110A of the Customs Act 1962 which are reproduced here as under: "Section 110A. Provisional release of goods, documents and things seized pending adjudication.- Any goods, documents or things seized under section 110, may, pending the order of the adjudicating authority, be released to the owner on t....
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....e of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (iii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees. (1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of section 40 of the Finance Act, 1984, before the Appellate Tribunal and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on such commencement to the Central Government and the Central Government shall deal with such appeal or matter under section 129DD as if such appeal or matter were an application or a matter arising out of an application made to it under that section." 6.6 The provisions of Section 129A of the Act clearly specifies that the appeal is maintainable before this Tribunal against the decision or order passed by the Adjudicating Authority. 6.7. On analyzing the above provisions of Section 110A and Section 129(A) of Customs Act, 1962 we find that any person aggrieved by decision or order passed by the Commis....