TaxTMI 
TaxTMI 
2017 (12) TMI 1460
X X X X Extracts X X X X
X X X X Extracts X X X X
....der Section 110 of the Act. The Tribunal after setting aside the letter dated 25 September 2017 restored the issue to the adjudicating authority i.e. Commissioner of Customs(I) to pass a fresh order. 2. The Revenue urges only the following question of law for our consideration: "Whether the Tribunal has jurisdiction to entertain an Appeal against a letter allowing provisional release of Vessel "Sagar Fortune" under Section 110A of the Customs Act, 1962"? From the impugned order dated 31st October 2017 of the Tribunal, it appears, that , the Revenue had not urged the issue raised hereinabove before the Tribunal. However, as the question raised is one of jurisdiction on undisputed/admitted facts, going to the root of the dispute, and if the appellant is correct, it would make the impugned order dated 31 October 2017 a nullity (see Kiran Singh & Ors. Vs. Chaman Paswan AIR 1954 (SC) 340) we are considering the question urged. In support of considering a question of jurisdiction (on admitted facts) in an appeal before this court even when not urged before the Tribunal we place reliance upon the decision of the Supreme Court in Santosh Hazari vs. Purshottam Tiwari 251 ITR 84. Normally....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l provisional release of the vessel under Section 110A of the Act and restored the issue to the Commissioner of Custom(I) to decide the issue afresh. 6. The challenge in this appeal is not to the decision taken on merits by the impugned order dated 31 October 2017 of the Tribunal. The challenge in this appeal is only to the jurisdiction of the Tribunal to entertain an appeal from a letter 25 September 2017 allowing provisional release of the seized vessel. This in the context of the Tribunal's powers to entertain appeals under Section 129A (1) (a) of the Act. 7. Before recording and considering the submission of the rival parties, we may profitably reproduce the relevant provisions of the Act, in the context of the appeal, as under: "Section 2. Definitions-In this Act, unless the context otherwise requires. (1) "adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Board, Commissioner (Appeals) or Appellate Tribunal." "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 adjudic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ervice Tax v. Gaurav Pharma Ltd. 2015(326) ELT 561 has taken a view that an appeal from a letter directing provisional release of seized goods under Section 110A of the Act is an appealable order under Section 129A(1)(a) of the Act to the Tribunal. However it is submitted that the same has not been accepted by the Revenue as it is subject matter of challenge in an appeal before the Punjab and Hariyana High Court and awaiting admission. e. Our attention is invited to the decision of this Court in Commissioner of Central Excise v Narendra Plastic Pvt. Ltd. 2016(342) E.L.T. 497 (Bom.) wherein this issue viz. whether a letter directing provisional release of the goods is appealable or not, was left open to be considered in an appropriate case keeping in view the decision of the larger bench of the Tribunal in Gaurav Pharma (Supra). It is submitted that this is an appropriate case where the issue should be adjudicated upon. 9. On the other hand, Mr. Sridharan, the learned counsel appearing for the Respondent in support of the impugned order submits as under :- a. The letter dated 25 September 2017 allowing provisional release of the vessel by the Commissioner of Customs is in the nat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ained by the Court on the ground of alternative remedy. In support, attention is invited to the decisions of the Rajasthan High Court in the case of Shiv Mahal Textiles Pvt. Ltd. v. Director General of Revenue Intelligence Civil Writ Petition No. 4946 of 2012 dated 18th December 2012. and Gentleman Suitings Pvt. Ltd. Vs. Director General Revenue Intelligence. 2012 (12) TMIO Rajasthan High Court. Thus the Revenue cannot take inconsistent stands. Particularly when Rule of law requires that the law be applied uniformly to all. 10. Before dealing with the rival submissions, we must make it clear that no fault can be found in the Tribunal entertaining the appeal from the letter dated 25 September 2017 directing provisional release of the vessel. This for the reason that at the time the division bench of the Tribunal entertained the appeal and passed the impugned order dated 31 October 2017, it was bound to do so, as the issue was concluded by the decision of its larger Bench in Gaurav Pharma (supra). This decision of the larger bench continues to be binding in the absence of any stay from a higher forum, although the appeal filed therefrom is awaiting admission. The doctrine of precede....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of Section 129A (1) (a) of the Act being that such decision / order (whether conditional or unconditional) is binding. In any case, we may point out that in this case the Respondent was heard by the Commissioner of Customs on 7 September 2017 before taking the decision as contained in the letter dated 25 September 2017. Therefore even if we apply the test proposed by the Revenue for a letter to achieve the status of a decision or order is a grant of hearing, the letter dated 25 September 2017 satisfies the above test. 12. It was then contended by the Revenue that in any event the letter dated 25 September 2017 would not be an appealable order under Section 129A (1) (a) of the Act as it is not passed/ issued by the Commissioner of Customs as an adjudicating authority. In support our attention is invited to Section 110 A of the Act, to contend that as the direction has been issued pending adjudication, the letter dated 25 September 2017 is not issued by the Commissioner as an adjudicating authority for the reason that the adjudication is yet to be done. The above submission completely ignores the fact that with effect from 8 April 2011, Section 110A of the Act has undergone a chan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o be taken by the adjudicating authority. 14. Thus for the purposes of the Tribunal entertaining the appeal from the letter dated 25th September 2017, it would make no difference if it is an administrative or a quasi-judicial order / decision. However for the purpose of completeness we would like to refer to the test laid down by the Supreme Court in the Automotive Tyre Manufacturers Association v. Designated Authority and Others (2011) 2 Supreme Court Cases 258 to draw a distinction between administrative and quasi judicial order at paragraph 65, as under:- "65. More often than not, it is not easy to draw a line demarcating an administrative decision from a quasi-judicial decision. Nevertheless, the aim of both a quasi-judicial function as well as an administrative function is to arrive at a just decision. In A.K. Kraipak v. Union of India this Court had observed that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power, regard must be had to: (i) the nature of the power conferred; (ii) the person or persons on whom i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al release. Therefore we hold that the order/direction given under Section 110 A of the Act is an appealable order under Section 129A(1) (a) of the Act . 17. We have perused the decision of the larger bench of the Tribunal in Gaurav Pharma (supra) which analyses the nature of an order / decision taken by the adjudicating authority under Section 110A of the Act as observed in the following paras as under:- "30. Section 129A(1) (a) provides for any aggrieved person to file an appeal to the Appellate Tribunal against "a decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs as an adjudicating authority". It is not disputed that an order under Section 110A can be issued only by an adjudicating authority. Revenue argues that though the order is by an adjudicating authority, it is not an adjudication order. This will take us to who is an "adjudicating authority". Section 2(1) states that "adjudicating authority" means "any authority competent to pass any order or decision under this Act..." Having arrived at the uncontested conclusion that an order under Section 110A is issued by adjudication authority it will be illogical to infer that an order un....