2008 (2) TMI 668 - AT - Customs

Maintainability of Appeal - appeal to Appellate Tribunal - Held that - we are not sure whether in the instant case the adjudication is to be made by Commissioner himself or by any subordinate officer - The appellant contends that the direction of the High Court was not carried out by the Commissioner, if that is so, it is open to the appellant to make grievance to that effect in the High Court - appeal dismissed being not maintainable.

Summary

Issues:
1. Maintainability of appeal before the Tribunal under Section 129-A of the Customs Act.
2. Nature of the order under Section 110-A for provisional release of goods.
3. Jurisdiction of adjudication by Commissioner or subordinate officer.
4. Compliance with the direction of the High Court in the Writ Petition.

Analysis:
1. The appeal in question pertains to the maintainability before the Tribunal under Section 129-A of the Customs Act. The Tribunal observed that the order for provisional release of goods under Section 110-A, pending adjudication, does not constitute an order in the nature of adjudication. The Tribunal highlighted that the order of release or non-release is merely a provisional measure pending the final adjudication by the competent authority. Consequently, the appeal against such an order is not maintainable under Section 129-A.

2. The Tribunal delved into the nature of the order under Section 110-A of the Customs Act, which allows for the provisional release of goods seized under Section 110 pending the adjudication process. It emphasized that this order is not akin to an order in the nature of adjudication, as it is an interim measure awaiting the final decision by the adjudicating officer. Therefore, the Tribunal concluded that the order for provisional release does not fall within the ambit of appealable orders under Section 129-A.

3. Another aspect considered by the Tribunal was the uncertainty regarding whether the adjudication would be conducted by the Commissioner himself or by a subordinate officer. This ambiguity raised questions about the proper forum for addressing grievances related to the release of goods. The Tribunal noted that if there were issues regarding the compliance with directions from the High Court, the appellant could seek redressal in the High Court rather than pursuing the matter before the Tribunal. This further reinforced the dismissal of the appeal by the Tribunal.

4. The Tribunal also took into account the context of the application for release of goods before the Commissioner, which was influenced by a directive from the Delhi High Court in a Writ Petition. The Tribunal indicated that if the directions of the High Court were not followed by the Commissioner, the appropriate course of action for the appellant would be to raise the matter in the High Court itself. This contextual background added weight to the Tribunal's decision to dismiss the appeal in limine, considering the overall circumstances and legal framework involved.

In conclusion, the Tribunal determined that the appeal related to the provisional release of goods under Section 110-A did not meet the criteria for appeal under Section 129-A of the Customs Act due to the interim nature of the order and the absence of adjudicatory elements. The Tribunal emphasized the distinction between provisional measures and final adjudication, highlighting the procedural nuances that guided their decision to dismiss the appeal.