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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 ..... fine and penalty. (d) Furnishing of an undertaking that they will not dispute the identity of the goods during the course of adjudication/prosecution." 2. Before allowing the applications for early hearing of the appeals, it was opposed that the appeal against the order of the Commissioner of Customs (General) under Section 110A of the Customs Act, 1962 is not maintainable before this Tribunal. 3. Therefore, the issue before us is that whether the appeal against the order of the Commissioner of Customs (General) who ordered for provisional release of goods under Section 110A of the Customs Act is maintainable before this Tribunal or not. 4. The learned counsel for the applicant submitted that the appeal against the order of the Commissioner of Customs (General) under Section 110A of the Act is maintainable before this Tribunal as held by 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 [2012 (281) E.L.T. 545 (Tri.-Mum.)] and the same was affirmed by the Hon'ble Supreme Court in Civil Appeal No. 10085 of 2011, dated 24-11-2011. The same view has been taken by the Hon'ble Bombay High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Delhi High Court dated 29-11-2007 in Writ Petition (C) No. 3813/2007. 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. In the above circumstances, we are not inclined to entertain this appeal which is accordingly dismissed in limine." The issue came up before this Tribunal in the case of Royal Enterprises & others v. CC, Amritsar also, wherein this issue was dealt with by this Tribunal and the Tribunal has passed Final Order No. C/339-341/2011, dated 21-7-2011 [2012 (279) E.L.T. 289 (Tri.)] wherein the following order was passed by the Commissioner and goods were allowed to be released provisionally :- "(a) On payment of differential duty in addition to the duty already paid of Rs. 8,78,023/- on TR-6 challan; (b) On furnishing a bond for the full value of the seized goods, i.e. Rs. 45,07,224/-; (c) On furnishing a bank gurantee equal to 25% of the full market value of the seized goods, and (d) On furnishing a declaration in the form of an affidavit that the party will not challenge the value and identity of the sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 2(1) of the Customs Act, adjudicating authority is a competent authority to pass any order or decision under this Act. The provisional release of the goods is enshrined under the provisions of Section 110A of the Customs Act, 1962. The said Section 110A is inserted by Section 26 of Taxation Laws of (Amendment) Act, 2006, I may read the said 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 officer, be released to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require." It is to be noted that the provisional release of the goods, if any, is governed by the provisions of Section 110A of the Customs Act, 1962. The said provisions of Section 110A also indicate, the said release can be done by Commissioner of Customs by a provisional order. From the plain reading of the letter reproduced at para 2, it would indicate that the Commissioner had passed this order, and intimated by the Jt. Commissioner to the appellant. This order of 23-1-2008, has to be const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." From the above, it is obvious that a decision or order passed by the Commissioner of Customs as an adjudicating authority (emphasis supplied) is alone appealable before the Tribunal and not any decision or order passed other than as an adjudicating authority by the Commissioner of Customs. 13.1 Section 110A of the Customs Act reads as follows :- "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 officer, be released to the owner on taking a bond from him in the proper form with such security and conditions as-the Commissioner of Customs may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others case, the issue whether an appeal is maintainable before this Tribunal in respect of an order passed under Section 110A did not come up at all for consideration and there was no finding given by the Tribunal in those decisions that such an appeal is maintainable. In view of the above, the support drawn by the learned Member (Judicial) on these decisions has no relevance. The only decision which directly addresses the issue is that of Navshakti Industries wherein this Tribunal clearly held that an order passed under Section 110A is not maintainable before the Tribunal. This Tribunal is a creature of this statute and if the statute does not provide for an appellate remedy by the Tribunal, the Tribunal cannot assume such powers. 15. In view of the above, I am of the view that an appeal against the order of provisional release passed by the Commissioner of Customs under Section 110A is not maintainable before this Tribunal and accordingly the appeal is liable to be dismissed. DIFFERENCE OF OPINION 16. There is a difference of opinion between the Members, therefore the matter be placed before the Hon'ble President to refer the matter to Third Member to decide the issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lease of goods, documents and things seized pending adjudication. - Any goods, documents or things seized under section 110, may, pending the order of the adjudicating officer, be released to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require." (3) Whether the amended provisions of Section 110A (w.e.f. 8-4-2011) are applicable to the facts of this case, as held by Member (Judicial), or not. (4) Whether the appeal under Section 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)." 18. The appellant filed this appeal against the order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the following decisions : (i) Dhananjay Kumar v. CC (I) Nhava Sheva - 2008 (230) E.L.T. 684; (ii) Swiber Offshore Construction Pte. Ltd. v. CC (I) Mumbai vide Final Order Nos. M/426-427/11/CSTB/C-I, dated 25-10-2011; (iii) Royal Enterprises & others v. CC, Amritsar - Final Order No. C/339-341/11, dated 21-7-2011; (iv) Indoworth (India) Ltd. v. Union of India reported in 2010 (254) E.L.T. 62 (Bom.). 24. The Revenue submitted that the order in respect of provisional release of the goods passed under Section 110A of the Customs Act, 1962 is an interim order pending adjudication. Therefore, the appeal is not maintainable as per Section 129 of the Customs Act, 1962. 25. The revenue relied upon the decision of the Division Bench in the case of Shanti Alloys Pvt. Ltd. v. CC, Bangalore reported in 2000 (123) E.L.T. 643 and another Division Bench decision of the Tribunal in the case of Nav Shakti Industries Pvt. Ltd. v. CC, New Delhi reported in 2008 (225) E.L.T. 522 (Tri.-Del.). 26. I find that the provisions of Section 110A of the Customs Act, 1962 provides provisional release of goods, documents and things seized pending adjudication. For ready reference, the provisions ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that the adjudicating authority may, pending the order of adjudicating authority, may release the seized goods on the conditions on the security and conditions as the adjudicating authority may require. Even the amended provisions of Section 110A of the Customs Act, 1962 only provides provisional release of seized goods pending order of the adjudicating authority meaning thereby that the order of provisional release is an interim order pending order of the adjudicating authority and the Division Bench of the Tribunal in the case of Shanti Alloys (supra) held that "the Tribunal is a creature of the law viz. Customs Act, 1962. Section 129A(1) thereof clearly lays down the jurisdiction of the Tribunal would only commence when an order by a Commissioner of Customs acting as an adjudicating authority is agitated before it. In this case, the order even of the Commissioner of Customs is only an interim order of provisional assessment and provisional release. Therefore, the appellants have not been able to cross the first bridge of the provisions of Section 129A(1)(a) ibid inasmuch as that the cause of action is not satisfied in terms of availability of the Tribunal's jurisdiction u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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