2012 (11) TMI 878 - AT - Customs

Maintainability of Appeal u/s 129A of Customs Act Third Member decision - Provisional release of goods under Section 110A of the Customs Act, 1962 - Release of Seized goods pending Adjudication - held that - It is only the learned Single Member in the case of Dhananjay Kumar (2008 (2) TMI 348 - CESTAT MUMBAI) held that the appeal is maintainable against the provisional release of the goods under Section 129A of the Customs Act, 1962 whereas the Division Bench of the Tribunal in the case of Shanti Alloys Pvt Ltd (1999 (8) TMI 467 - CEGAT, MADRAS) and in the case of NavShakti Enterprises (2008 (2) TMI 668 - CESTAT, NEW DELHI) held that the order in respect of provisional release of the goods is an interim order pending order of the adjudicating authority and the appeal is not maintainable before the Tribunal. The judicial proprietary demands that the decisions of the Divisional Bench is to be followed in preference over the decision of the Single Member which is passed without taking into consideration the earlier decision passed by the Division Bench. The appeal is not maintainable before the Tribunal against the order under Section 110A of the Customs Act, 1962 of provisional release of goods pending the order of adjudication.

Summary

Issues:
1. Interpretation of Section 110A of the Customs Act, 1962
2. Applicability of amended provisions of Section 110A
3. Maintainability of appeal under Section 129A(1) of the Customs Act
4. Conflict between Member (Judicial) and Member (Technical) on appeal's maintainability
5. Precedents cited in support of appeal's maintainability

Analysis:

1. The judgment revolves around the interpretation of Section 110A of the Customs Act, 1962. The central question is whether the appeal against an order passed under this section is maintainable. The disagreement arises from differing readings of the provision by Member (Judicial) and Member (Technical).

2. The judgment delves into the applicability of the amended provisions of Section 110A post the Finance Bill 2011 amendment. The court aligns with the view of the learned Member (Judicial) that the amended provisions are relevant to the case at hand.

3. The crux of the issue lies in determining the maintainability of the appeal under Section 129A(1) of the Customs Act against the order passed by the adjudicating authority under Section 110A. The appellant argues for appeal's maintainability, citing relevant legal provisions and definitions.

4. The conflicting opinions between Member (Judicial) and Member (Technical) further complicate the matter. Member (Judicial) asserts the appeal's maintainability based on precedents like Dhananjay Kumar, Royal Enterprises, and Swiber Offshore. In contrast, Member (Technical) relies on the Navshakti Industries case to argue against appeal's maintainability.

5. The judgment extensively discusses the precedents cited by both parties. The appellant relies on decisions like Dhananjay Kumar, Swiber Offshore, and Royal Enterprises to support the appeal's maintainability. In contrast, the Revenue cites cases such as Shanti Alloys Pvt Ltd and Nav Sakthi Industries Pvt Ltd to argue against the appeal's maintainability.

6. Ultimately, the court concludes that the appeal is not maintainable before the Tribunal against the order under Section 110A of the Customs Act, 1962. The judgment emphasizes the interim nature of the order of provisional release and aligns with the view of Member (Technical) in this regard.

7. The judgment directs the dismissal of the appeal as non-maintainable and instructs the Registry to forward the appeal papers to the regular Bench for further action. The decision underscores the importance of following the decisions of the Division Bench over those of a Single Member for judicial propriety.