TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 1997
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....interference? (iv) Whether the Larger Bench of 5 Members may like to answer the reference made to it to the effect that an appeal against a decision or order passed by Commissioner of Customs for provisional release of seized goods documents, etc., made under Section 110A of the Customs Act, 1962 lie before the CESTAT under Section 129(1)(a) of the Customs Act, 1962?" 2. The appeals were preferred before the Tribunal against the order passed by the Commissioner of Customs and Central Excise, Rohtak, directing provisional release of goods in exercise of powers under Section 110A of Customs Act, 1962 (for short, 'the Customs Act'). Two Member Bench of the Tribunal while disagreeing with earlier order passed in Akanksha Syntax Private Limited v. CC (General), Mumbai - 2013 (289) E.L.T. 186 (Tri. - Mumbai), wherein it was opined that the appeal against the order passed under Section 110A of the Customs Act, is not maintainable, referred the matter to the President of the Tribunal for constitution of a Larger Bench to decide the issue. It is how the matter was listed before a Bench consisting of five member including the President of the Tribunal. 3. Learned Co....
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....we have set out above. That provision clearly says that in the event of the members of a Bench differing in opinion on any point, and the members are equally divided, the case shall be referred to the President for hearing on any such point by one or more for members of the Tribunal, and such point shall be decided according to the opinion of the majority of the members. 11. It is true that sub-section (5) refers to difference of opinion arising amongst members of a Bench in a particular case, and not specifically where the members of a Bench doubt the correctness of an earlier decision. However, Section 129C confers power of reference upon the President. That power should be construed to be wide enough to enable the President to make a reference where members of a Bench find themselves unable to decide a case according to What they perceive to be the correct law and fact because of an impediment arising from an earlier decision with which they cannot honestly agree. In such cases, it is necessary for the healthy functioning of the Tribunal that the President should have the requisite authority to refer the case to a larger Bench. That is a power which is implied in the expr....
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....tions as the adjudicating authority may require. Section 129A : Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under Section 128A; (c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the Principal Commissioner of Customs or Commissioner of Customs, either before or after the appointed day, under Section 130, as it stood immediately before that day :" 9. The contention sought to be raised by the appellant in support of the argument that no appeal is maintainable against order passed by the Commissioner for provisional release of goods is that such an order is essentially an administrative decision. It is not adjudicatory, even though it may have been passed by an ad....
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.... Whenever such an power is exercised, the necessary consequences of which is determination of rights of the parties, the principles of natural justice step in, unless specifically excluded by the statute. It is not the case of the Revenue that the statute bars opportunity of hearing to the party affected. It is settled principle of law that whenever civil consequences follow from an order passed by an authority, it assume the character of a quasi judicial order. Reference has been made to judgment of Hon'ble the Supreme Court in Rai Kumar v. CIT, 2007(2) SCC 181. 13. The issue as to whether any authority is considered as a quasi judicial authority and the decision rendered by it as a quasi judicial decision even in cases where the lis is not between the two contending parties, but the State on one side was considered by Hon'ble the Supreme Court in Indian National Congress (I) v. Institute of Social Welfare, 2002(5) SCC 685. The opinion express was that wherever statutory authority is to act judicially, its decision is termed as quasi judicial as the rights between the parties are determined. Relevant paras thereof are extracted below :- "20. But there are cases where ....
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....; that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially." 23. The legal principles laying down when an act of a statutory authority would be a quasi-judicial act, which emerge from the aforestated decisions are these : Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending pa....
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....compulsory purchase order or to allow a planning appeal after a public inquiry. The decision itself is administrative, dictated by policy and expediency. But the procedure is subject to the principles of natural justice, which require the minister to act fairly towards the objections and not (for example) to take fresh evidence without disclosing it to them. A quasi-judicial decision is therefore an administrative decision which is subject to some measure of judicial procedure." 28. We do not find any merit in the submission. At the outset, it must be home in mind that another test which distinguishes administrative function from quasi-judicial function is, the authority who acts quasi-judicially is required to act according to the rules, whereas the authority which acts administratively is dictated by the policy and expediency. In the present case, the Election Commission is not required to register a political party in accordance with any policy or expediency but strictly in accordance with the statutory provisions. The afore-quoted passage from Administrative Law by Wade & Lorsyth is wholly inapplicable to the present case. Rather, it goes against the argument of Learned ....