By TIOL News Service

NEW DELHI, SEPT 22, 2015: AN order was passed by the Commissioner of Customs u/s 110A of the Customs Act, 1962 in the matter of provisional release of seized goods.

The appellants are of the view that the orders impose harsh conditions for releasing the seized goods provisionally and, therefore, they are in appeal before the CESTAT.

Hardships aside, the AR raised a preliminary objection as regards maintainability of the appeal inasmuch as it is the Revenue view that the appeal does not lie before the Tribunal.

It is submitted by the AR that the issue has already been answered by the Larger Bench of the Tribunal in the case of Akanksha Syntex Pvt. Ltd. Vs. CCE Mumbai - 2012-TIOL-1697-CESTAT-MUM wherein it is held that against the order under section 110A of the Customs Act 1962 appeal is not maintainable before the Tribunal;that the ratio laid down has not been reversed by any High Court; that the decision of Larger Bench is binding on the Bench in terms of principles of judicial discipline.

The AR also added - that if the order is a speaking order under Section 110A of the Customs Act 1962, in that situation appeal lies before this Tribunal but if order under section 110A is not speaking order, then appeal does not lie before this Tribunal.

The appellants inter alia submitted that in the judgment of the Hon'ble High Court of Rajasthan in the case of Giriraj Syntex Pvt. Ltd. (WP 4955/2012) the only fact relevant was that the order was passed by the Commissioner under section 110A of the CA, 1962 and the petitioners had approached the High Court by filing writ petitions and when the counsel for the Revenue raised the objection that the petitioner has remedy by filing the appeal in appropriate forum under section 129A of the CA, 1962 and, therefore, the High Court decided the point of law that " the appeal against the order passed by Commissioner under section 110A ibid can be filed under section 129A " ibid and this ratio is binding on the Tribunal.

The CESTAT observed that in the case of Akansha Syntex there was a difference of opinion between the Members and resultantly a reference was made to the third Member and who held that the provisional release order is an interim order of the Adjudicating Authority and that appeal against interim order is not maintainable before the Tribunal.And that is how the Majority decision came about.

The provisions of section 110A of the Customs Act, 1962 were reproduced and it was observed that there is a clear mandate that under section 110A the decision is to be taken by the Adjudicating Authority for imposing conditions for release of seized goods provisionally.

After extracting the provisions of section 129A(1) of the Customs Act, 1962, the Tribunal observed -

++ 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.

++ On analyzing the 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 Commissioner of Customs as an adjudicating authority may appeal to this Tribunal. Therefore, under section 110A the order of provisional release is being passed by Commissioner Customs as adjudicating authority and aggrieved from the said order appeal can be filed before this Tribunal under section 129 A(1) of the Act.

++ We also observe that the arguments of Ld. AR is not convincing that if an order passed under section 110A is a speaking order, the appeal lies before this Tribunal and if it is non-speaking order appeal does not lie before this Tribunal as section 129A of the Customs Act speaks that appeal lies before this Tribunal against the order / decisions of the Adjudicating Authority that does not specify that appeal will not lie against non speaking order and appeal shall lie against speaking order. Therefore, the argument advanced by the Ld. AR is mis-leading only.

The Bench also observed - in all the case laws relied upon by the Ld. Counsel, the Hon'ble High Courts have not examined the issue of jurisdiction of this Tribunal to entertain appeal against the order under section 110A of the Customs Act by this Tribunal and only observed that appeals lies before the appropriate forum and under section 129A of the Customs Act.

Taking a view that the Division Bench is not in agreement with the decision taken by the Tribunal in the case of Akanksha Syntex Pvt. Ltd. (supra) and following judicial discipline, in the interest of justice, the matter was referred to the Larger Bench of the Tribunal to decide the following issue:

"Whether an appeal lies before this Tribunal against the order passed by Commissioner (Customs) under section 110A of the Customs Act 1962 for provisional release of the goods or not."

The registry was directed to place the records before the President for consideration and to constitute the Larger Bench to decide the above mentioned issue.

In passing: A recent communication by the Assistant Registrar reveals that the matter is listed before a FIVE MEMBERS Larger Bench and the hearing is fixed on 05/10/2015.

Coincidentally, also see Ravi Foods - 2013-TIOL-2100-CESTAT-MUM where the Division Bench held -

6. The decision of the Akanksha Syntex Pvt. Ltd. (supra) is passed on 17.04.2012. At that time, the decision of Shiv Mahal Textiles Pvt. Ltd. (supra) by the Hon'ble High Court of Rajasthan was not available as the same has been passed on 18.12.2012. The decision of the Hon'ble High Court is binding on us. Therefore, following the decision of Shiv Mahal Textiles Pvt. Ltd. (supra - Civil Writ Petition NO.4946/2012) we hold that the appeal is maintainable before this Tribunal.

(See 2015-TIOL-1994-CESTAT-DEL)