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TMI Blog2013 (9) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... require - the adjudicating authority can release the goods seized u/s 110A on taking a bond from him in the proper form with such security and conditions - Decided against assesse. - C/112-113/2012-Mum - Final Order Nos. A/654-655/2012-WZB/C-I(CSTB) - Dated:- 9-10-2012 - Shri Ashok Jindal, P.R. Chandrasekharan and Shri S.S. Kang, JJ. Shri Ashok Singh, Advocate, for the Appellant. Ms. D.M. Durando, Deputy Commissioner (AR), for the Respondent. ORDER The applicants have filed applications for early hearing of their appeals on the ground that it is a case of live consignment and on the request for provisional release of the goods, the Commissioner of Customs (General) has ordered provisional release of the goods under Section 110A of the Customs Act on the following conditions :- (a) Payment of differential duty on the basis of redetermined value as proposed by the DRI (DZU) through TR-6 challan. (b) Furnishing a Bond equivalent to 100% of the redetermined assessable value as proposed by the DRI (DZU). (c) Securing a Bank Guarantee with a self renewal clause equivalent to the 30% of the redetermined assessable values as proposed by DRI (DZU) for covering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in the case of Swiber Offshore (supra) wherein the issue whether the appeal against the order of provisional release under Section 110A of the Customs Act is maintainable or not was raised before the third Member but the same was not entertained by the third Member as the issue was not referred to him and finally in that case the appeal was allowed by modifying the order of the Commissioner of Customs for provisional release under Section 110A of the Customs Act, 1962. The said order was affirmed by the Hon ble Supreme Court, which means that the Apex Court has examined the issue of maintainability of the appeal against the order of provisional release under Section 110A of the Customs Act and as this Tribunal has modified the conditions of provisional release passed by the Commissioner of Customs as maintainable. 8. In the case of Navshakti Industries (supra), this Tribunal has observed as under :- 3. As a mater of fact, we are not sure whether in the instant case the adjudication is to be made by Commissioner himself or by any subordinate officer. It may also be relevant to mention here that the said application before the Commissioner for release of the goods was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication order under the provisions of Section 129A of the Customs Act, 1962, the provisions of Section 129A(1) read as under :- 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 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 Commissioner of Customs either before or after the appointed day, under Section 130, as it stood immediately before that day. It can be noted that the provisions of Section 129A(1) clearly indicate an order passed by the Commissioner of Customs as an adjudicating authority. The definition of adjudicating authority as is found in provisions of Section 2(1) of the Act, which reads Adjudicating Authority means any authority competent to pass any order or decision under this Act, but does not include the board of Commissioner (Appeals) or Appellate Tribunal. It can be seen from the above reproduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are not sure whether in the instant case the adjudication is to be made by Commissioner himself or by any subordinate officer is not relevant to the facts of this case. Admittedly, the order of provisional release under Section 110A is passed by the adjudicating authority. 11. Accordingly, by relying on the decision of Dhananjay Kumar (supra), Royal Enterprises (supra) and Swiber Offshore (supra), we hold that appeal against the order of provisional release passed by the adjudicating authority under Section 110A of the Customs Act, 1962 is maintainable before this Tribunal. Accordingly, we allow the application for early hearing and direct the Registry to list the appeal for final disposal on ___________ 12. I have gone through the findings and decision recorded by learned Member (Judicial). However, I am unable to subscribe to the views expressed by learned Member (Judicial). 13. The short issue for consideration in this case is whether an order passed by the Commissioner of Customs under Section 110A of the Customs Act, 1962 can be appealed against before this Tribunal. Section 129A relating to appeals before the Tribunal reads as follows :- Any person aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Navshakti Industries Pvt. Ltd. Moreover, the decision in the case of Navshakti Industries Pvt. Ltd. was not brought to the notice of the Single Member in the case of Dhananjay Kumar. Therefore, the said decision cannot be relied upon. The learned Member (Judicial) has also relied upon the decision of this Tribunal in the case of Swiber Offshore Construction Pte. Ltd. v. CC (I), Mumbai vide Order Nos. M/426-427/11/CSTB/C-I dated 25-10-2011. There was a difference of opinion between Member (Judicial) and Member (Technical) in that case and the matter was referred to the Third Member. In para 23 of the said order, the Vice President, acting as Third Member, clearly recorded a finding that the issue of maintainability of the appeal was not referred to him. Therefore, the issue of maintainability of appeal before the Tribunal in respect of an order passed under Section 110A was not considered by this Tribunal in Swiber Offshore Construction Pte. Ltd. case and, therefore, the said decision cannot be relied upon in coming to the conclusion that appeal is maintainable before this Tribunal. As regards the reliance placed on Metro Industries case [2010 (262) E.L.T. 1095 (Tri.-Mum.)], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 129A(1) of the Customs Act lies before this Tribunal against the order passed by the adjudicating authority under Section 110A (amended) or not. (5) Whether Member (Judicial) is correct in holding that the appeal against an order passed by the adjudicating authority under Section 110A is maintainable, by relying on the decisions in the case of Dhananjay Kumar (supra), Royal Enterprises (supra) and Swiber Offshore (supra). (6) Whether Member (Technical) is correct in holding that the appeal against an order passed under Section 110A is not maintainable, relying on the decision of Navshakti Industries (supra). 17. Following points of difference has been referred to the third member :- Whether Member (Judicial) is correct in reading the provisions of Section 110A as under :- 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 adjudicating authority, be released to the owner on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require. (2) Whether Member (Technical) is correct by re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable under Section 129A(1) of the Customs Act, 1962 against the order passed by the adjudicating authority under Section 110A of the Customs Act, 1962 is maintainable. 22. The contention of the appellant is that as per the provisions of Section 129A of the Customs Act, 1962, any person aggrieved by any decision or order passed by the Commissioner of Customs as an adjudicating authority can file appeal before the Tribunal. The contention is that the provisions of Section 129A(1)(a) clearly indicates that an order passed by the Commissioner of Customs as an adjudicating authority is appealable before the Tribunal. The appellant also relied upon the definition of the adjudicating authority as provided under Section 2(1) of the Customs Act, 1962 which provides adjudicating authority means any authority competent to pass any order or decision under this Act... The submission is that as per the definition of adjudicating authority as provided under Section 2(1) of the Customs Act, 1962, adjudicating authority is to pass any order or decision under the Customs Act, 1962 and the provisional release of the goods is an order passed under the provisions of Section 110A of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon by the applicant. In this case, the issue regarding maintainability of the appeal against the order passed in respect of provisional release was not the issue. In respect of the reliance of the applicant in the case of Metro Industries and Royal Enterprises and others (supra), I find that the issue whether the appeal is maintainable against provisional release order was not the issue in dispute. 30. In the case of Indoworth (India) Ltd. supra relied upon by the appellant, the issue was in respect of maintainability of writ petition against the provisional assessment order passed by the assessing authority passed under Section 18 of the Customs Act, 1962 and the Hon ble High Court held that in such case the appeal is maintainable before the Tribunal. In the present case, the appeal is filed against the order passed by the adjudicating authority under Section 110A of the Customs Act, 1962 pending adjudication. Therefore, the ratio of this case is not applicable to the facts of the present case. 31. I find that the unamended Section 110A of the Customs Act, 1962 provides that Commissioner of Customs may on the conditions prescribed release the seized goods pending the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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