9911796707
TMI Blog2015 (9) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... e reconsidered by a Larger Bench. Registry is directed to place the records before the Hon'ble President for consideration and to constitute the Larger Bench of this Tribunal to decide subject issue. - Application Nos. C/Misc/55748 & 55749/2014,Appeal No. C/53901/2014-CU(DB), Appeal No. C/53878/2014-CU(DB) - Interim Order No. /116-117/2015 - Dated:- 25-5-2015 - Ashok Jindal, Member (J) And R. K. Singh, Member (T), JJ. For the Appellants : Shri M K Gupta Shri Garbit Chauhan, Advs For the Respondents : Shri Govind Dixit Shri Amresh Jain, DRs ORDER Per Ashok Jindal The appellants are in appeal against the impugned orders imposing harsh conditions for releasing the seized goods provisionally under section 110(A) of the Customs Act 1962. 2. Before coming to the merits of the case, the Ld. ARs appearing on behalf of the Revenue raised a preliminary objection that appeal against the order under Section 110(A) of the Customs Act 1962 does not lie before this Tribunal. Therefore, the issue before us is that whether the appeal against the order passed by the Commissioner under section 110(A) of the Customs Act 1962 lies before the Tribunal or not. 3. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal. 3.3 It is further submitted that if the order is a speaking order under Section 110(A) of the Customs Act 1962, in that situation appeal lies before this Tribunal but if order under section 110(A) is not speaking order, then appeal does not lie before this Tribunal. 4. On the other hand, Ld. Counsel appearing on behalf of the appellants submit that the Ld. AR has raised the following issues: a) Decision of Tribunal given by a bench of three members binding on a bench consisting of two members. b) Decision of Tribunal, in the case of difference of opinion between two members and the case is referred to 3rd member, the majority decision in that case will be considered as decision of larger Bench of this Tribunal. c) What are the requirements for the decision to be regarded as a precedent and therefore binding on a bench lower to it? d) How to ascertain ratio of the case decided by the court? 4.1. He submits that with regard to the judicial discipline that every decision contains three basic ingredients: a) Finding of material fact (direct and inferential); b) Statement of principle of law applicable to legal problem disclosed by the facts, and; c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 129(A) ibid and that is the ratio decided by the Hon'ble High Court and the said order is binding on the Tribunal. It is further submitted that the Revenue has not shown any order of the Hon'ble High Court which has taken the different view from the view taken by the Hon'ble High court of Rajasthan. He further submits that if the provision of law is interpreted by one side in a manner which is accepted by the other side, the same cannot be considered as a concession. Therefore, decision of the Hon'ble High court of Rajasthan in the case of Giriraj Sytex Pvt. Ltd. (Supra) is binding precedent. It is further submitted that if the order passed by the bench of any court or Tribunal cannot be relied upon if it is proved that the said judgment is either sub silentio or per incuriam the order of Hon'ble High Court is available where the decision is contrary to the decision given by the coordinate bench which has been placed to be precedent. He further submits that against the order of Larger Bench of this Tribunal in the case of Akanksha Syntax Pvt. Ltd. (Supra) a writ was filed before the Hon'ble High Court of Bombay for some concession of provisiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 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 Commissioner of Customs may require. 3) Whether the amended provisions of Section 110A 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 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, Royal Enterprises and Swiber Offshore. 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. 6.2. When the third member answered reference on the issue no.1,2 3, the third member held that Member (Judicial) is correct and affirmed the issue in favour of Member (Judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide any appeal in respect of any order referred to in clause (b) if such order relates to,- (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination; (c) payment of drawback as provided in Chapter X, and the rules made there under: Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where - (i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or (ii) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 110A of the Act lies with this Tribunal. In fact, 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 form and under section 129A of the Customs Act. 6.11. From the above discussion, as we do not agree with the decision of Akanksha Syntax Pvt. Ltd. (Supra) and none of the Hon'ble High Courts has considered the issue of jurisdiction of this Tribunal. Therefore, following the judicial discipline it would be in the interest of justice to refer the matter to the Larger Bench of this 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. 7. The registry is directed to place the records before the Hon'ble President for consideration and to constitute the Larger Bench of this Tribunal to decide above mentioned issue. ( Pronounced in the open court ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
