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2015 (11) TMI 1492 - AT - CustomsProvisional release of goods - Section 110A - Maintainability of appeal - 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 - Held that:- An order of release or non-release cannot be deemed to be an order in the nature of adjudication. The second reason was that the request for release of goods and the consequent order by Commissioner was as per directions of the High Court and it was open to the appellant to make a grievance to that effect before the High Court. Hence, only one of the reasons provided to arrive at the finding in Navshakti Industries is a relevant ratio - viz. that a provisional release order cannot be deemed to be an order in the nature of adjudication. No detailed discussion preceded this conclusion. From the drift of the brief analysis in the said order it could be inferred that since an order for provisional release is to be passed 'pending the order of the adjudicating officer' such order is not adjudication order. Incidentally, in Navshakti [2008 (2) TMI 668 - CESTAT, NEW DELHI] the Tribunal was dealing with provisions of Section 110A prior to its amendment with effect from 08/04/2011. The Tribunal, in fact indicated the doubt regarding rank of the final adjudicating officer in that particular case. Order for provisional release restores the seized goods to the owner. The conditions imposed for such restoration is decided by the adjudicating authority. Such decision will certainly have legal consequence to the owner of goods. Revenue asserts that there is no lis at the time of issuing order of release of seized goods. This contention is misconceived. Neither Section 110A nor any other provision of the Act prescribes specific preset conditions or guidelines for exercising such powers. Apparently the adjudicating authority exercises wide ranging discretionary powers, not fretted by any express statutory conditions, pre-listing the types of order that could be issued. When a statute confers powers upon a public official to decide on a person's rights and interests, the principles of natural justice guide the exercise of that power unless specifically excluded by the statute itself. To state that a decision or order in exercise of such powers is of unilateral, administrative nature is not legally tenable Distinction sought to be made by categorizing some orders (like the one under Section 110A) as an interim order will not sustain legal scrutiny. Section 110A provides for restoring seized goods to the owner. No doubt the offence case is still pending final outcome. However, an order for provisional release is a stand alone order irrespective of the final outcome of investigation or adjudication. The same is not predicated by possible later outcomes. Refusal to release the goods or imposing harsher conditions for release will certainly have legal adverse consequences to the owner of the goods. Hence, the owner has to have a remedy which is statutorily provided under Section 129A. Provisions of Section 129A (1) (a) clearly authorize an appeal against an order or decision by the Adjudicating Authority issued under Section 110A. There is no legal basis to restrict the scope of such appeal in the absence of any restrictive conditions in the provision. An appeal lies before this Tribunal against an order passed by Commissioner of Customs under Section 110A of the Customs Act, 1962 for provisional release of the goods. - Decided in favour of assessee.
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