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M/s Gaurav Pharma Ltd., M/s Suchita Aggarwal Versus C.C.E & S.T Rohtak, C.C., New Delhi (I & G)

2015 (9) TMI 1368 - CESTAT NEW DELHI

Maintainability of appeal - Seizure of goods - Section 110(A) - 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 - Held that:- From the provisions of Section 110A of the Act it is a clear mandate that under section 110A the decision is to be taken by the Adjudicating Authority for imposing conditions for release of seized goods provisionally. - any person aggrieved by decision or order passed by the Commi .....

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UMBAI] and same is required to be 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 .....

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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 behalf of the Revenue, the ld. AR submits that the issue has already been answered by the Larger Bench of this Tribunal in the case of Akanksha Syntax Pvt. Ltd. Vs. CCE Mumbai-2013 (289) ELT 186 (Tri-Bom) wherein it was held that against the order under section 110(A) of the Customs .....

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men Shootings Pvt. Ltd. in writ petition no.5318/2012 Rajasthan HC b) Giriraj Syntax Pvt. Ltd. in writ petition 4955/2012 Rajasthan HC c) Auto Creators Vs. UOI in writ petition (C)5600/2012 Delhi High Court. 3.1 It is further submitted that in the case of Amit Electronic Vs. CCE (Preventive)-2014 (309) ELT 60 (Delhi) the Hon'ble High Court has laid down the ratiodecidendi only on the question of law pertaining to error of jurisdiction and not on the issue of maintainability of appeal before .....

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e of Akanksha Syntax Pvt. Ltd. (Supra) is not per incuriam in the light of the judgement of the Apex Court in the case of Rajkumar Shivhare Vs. Asst. Director, Directorate of Enforcement-2010 (253) ELT 3 (Supreme Court). 3.2 It is further submitted that the only ratio decidendi laid down in the orders of Hon'ble High Court are binding. Therefore, the decision of Larger Bench of this Tribunal in the case of Akanksha Syntax Pvt. Ltd. (Supra) is binding on this Bench in terms of principle of ju .....

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: 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 t .....

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giving judgment that constitute precedent. The only thing in a judge's decision binding a party is a principle upon which the case is decided and for this reason it is important to analyze decision and isolate from it the ratio decidendi. It is further submitted that Ratio decidendi can be summarized as follows: a) Opinion of the court on an issue not necessary for deciding dispute cannot be considered as ratio of that case. b) Ratio of a decision as is well known must by culled out from the .....

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pear to be similar. 4.3. In these circumstances, he submits that the judgment of the Hon'ble High Court of Rajasthan in the case of Giriraj Syntax Pvt. Ltd. (Supra) the only fact relevant was that the order was passed by the Commissioner under section 110(A) of the Customs Act 1962 and in this case petitioners were not satisfied with the conditions imposed by the Commissioner for provisional release of the goods who approached to the Hon'ble High Court by filing writ petitions. The couns .....

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e, the Hon'ble High Court decided the point of law that "the appeal against the order passed by commissioner under section 110(A) ibid can be filed under 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 .....

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;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 provisional release of goods, that doesn't mean that Hon'ble High Court has decided issue of jurisdiction in that matter and the same has n .....

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. 5. Heard the parties. Considered the submissions. 6. Before going to the merits of the case, first we have to decide the issue of maintainability of the appeal against the order under section 110 (A) of the Customs Act 1962. The main reliance of the Revenue is on the decision of Akanksha Syntax Pvt. Ltd. (Supra) of larger Bench of this Tribunal to say that appeal does not lie before this Tribunal. Therefore, we are analyzing the decision of Akanksha Syntax Pvt. Ltd. (Supra) wherein there was a .....

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e matter to Third Member to decide the issue. The points on which the difference has arisen are as under:- 1) Whether Member (Judicial) is correct in reading the provisions of Section 110(A) 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 securit .....

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ire." 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 th .....

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e appeal is maintainable before this Tribunal or not and hold that the provisional release order is an interim order pending order of the Adjudicating Authority and relied on the decision on Shanti Alloys Pvt. Ltd. Vs. Commissioner-2000 (123) ELT 643 (Tri) to hold that Tribunal is a creature of law and section 129 A(1) thereon clearly lays down that jurisdiction of Tribunal would only commence when order of Commissioner acting as Adjudicating Authority is agitated before it and further hold that .....

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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." 6.4 From the above provisions of Section 110A of the Act it is a clear mandate that under section 110A the decision is to be taken by the Adjudicating Authority for imposing conditions for release of seized goods provisionally. 6.5. We have also seen the provision of section 129 A and 129 A (1) of the Customs Act 1962 als .....

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ppointed 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: Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide 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 I .....

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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 involved; or (iii) the amount of .....

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with such appeal or matter under section 129DD as if such appeal or matter were an application or a matter arising out of an application made to it under that section." 6.6 The provisions of Section 129A of the Act clearly specifies that the appeal is maintainable before this Tribunal against the decision or order passed by the Adjudicating Authority. 6.7. On analyzing the above provisions of Section 110A and Section 129(A) of Customs Act, 1962 we find that any person aggrieved by decision .....

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his Tribunal and if it is non-speaking order appeal does not lie before this Tribunal as section 129A of the Customs Act speaks that appeal lies before this Tribunal against the order / decisions of the Adjudicating Authority that does not specify that appeal will not lie against non speaking order and appeal shall lie against speaking order. Therefore, the argument advanced by the Ld. AR is mis-leading only. 6.9. With these observations, we are not in agreement with the decision of the larger b .....

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