TMI Blog2017 (12) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT:- (Per M.S. Sanklecha J.) 1. This appeal under Section 130-A of the Customs Act, 1962 (the Act) takes exception to order dated 31st October 2017 passed by the Customs, Excise Service Tax Appellate Tribunal, (West Zonal Bench) at Mumbai (Tribunal). The impugned order dated 31st October 2017 of the Tribunal partly allowed the Respondent's appeal from letter dated 25th September 2017 communicating the decision of the Commissioner of Customs (Import-I) allowing provisional release under Section 110- A of the Act of the imported vessel Sagar Fortune(vessel), subject to certain conditions, pending final adjudication. The vessel had been seized on 21 August 2017 under Section 110 of the Act. The Tribunal after setting aside the letter dated 25 September 2017 restored the issue to the adjudicating authority i.e. Commissioner of Customs(I) to pass a fresh order. 2. The Revenue urges only the following question of law for our consideration: Whether the Tribunal has jurisdiction to entertain an Appeal against a letter allowing provisional release of Vessel Sagar Fortune under Section 110A of the Customs Act, 1962 ? From the impugned order dated 31st October ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 2017, the Deputy Commissioner of Customs communicated the decision of the Commissioner of Customs(I) allowing provisional release of the vessel subject to conditions i.e. a bond equal to 100% of the re-ascertained value and a bank guarantee of 30% of re-ascertained value of ₹ 41.45Crores. (d) Being aggrieved by the above letter dated 25 September 2017 communicating the decision allowing provisional release of the vessel, the Respondent filed an appeal to the Tribunal. The appeal as filed by the Respondent was entertained by the Tribunal under Section 129A (1) (a) of the Act. On merits, the Tribunal by the impugned order dated 31st October 2017 set aside the letter dated 25 September 2017 which allowed conditional provisional release of the vessel under Section 110A of the Act and restored the issue to the Commissioner of Custom(I) to decide the issue afresh. 6. The challenge in this appeal is not to the decision taken on merits by the impugned order dated 31 October 2017 of the Tribunal. The challenge in this appeal is only to the jurisdiction of the Tribunal to entertain an appeal from a letter 25 September 2017 allowing provisional release of the seized vessel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Customs (I); b. In any event, no appeal can be entertained by the Tribunal from the letter dated 25 September 2017(even if assumed to be decision/order) as it is not passed/issued by the Commissioner of Customs as an adjudicating authority. An appeal can be entertained under Section 129A (1) (a) of the Act only if the decision or order is passed as an adjudicating authority. c. The letter dated 25 September 2017 allowing provisional release of the seized vessel is pending adjudication, as is evident from Section 110A of the Act. Thus the letter dated 25 September 2017 cannot be on the directions of the Commissioner of Customs(I) as an adjudicating authority. Thus not appealable. d. It is fairly conceded that the larger bench of the Tribunal in Commissioner of Central Excise and Service Tax v. Gaurav Pharma Ltd. 2015(326) ELT 561 has taken a view that an appeal from a letter directing provisional release of seized goods under Section 110A of the Act is an appealable order under Section 129A(1)(a) of the Act to the Tribunal. However it is submitted that the same has not been accepted by the Revenue as it is subject matter of challenge in an appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the larger bench of the Tribunal in Gaurav Pharma (Supra) which has held that a communication/letter directing provisional release of the seized goods is an order or decision appealable to the Tribunal. e. This issue also arose for consideration before the Delhi High Court in Gurdeep Kaur Vs. C.C. (Preventive) 2015 (325) ELT 490 (Del.) and Candex Chemical Fibres Co. (P.) Ltd. Vs. CC 2014 (310) ELT 500 (Del.) wherein it has been held that such communication / letters directing provisional release of seized goods under Section 110A of the Act are appealable to the Tribunal under Section 129A(1)(a) of the Act; and f. In cases where petitions are filed under Article 226 of the Constitution of India seeking judicial review of orders passed under Section 110 A of the Act, the Revenue has objected to the same being entertained by the Court on the ground of alternative remedy. In support, attention is invited to the decisions of the Rajasthan High Court in the case of Shiv Mahal Textiles Pvt. Ltd. v. Director General of Revenue Intelligence Civil Writ Petition No. 4946 of 2012 dated 18th December 2012. and Gentleman Suitings Pvt. Ltd. Vs. Director General Revenue In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here cannot be any premium on an authority under the Act failing to follow the Rule of law nor can the authority/ Revenue be permitted to take advantage of its own wrong. The appellate remedies under the Act are provided to ensure that the Authorities under the Act remain within the bounds of its authority and pass correct orders on facts and law. The Supreme Court in Sitaram v. State of U.P. AIR 1979(SC) 745 has described an appeal is one in which the issue to be examined is whether the order of the court from which appeal is brought was correct on the materials before it. Therefore, in the present facts, an order or decision under Section 129A (1) (a) of the Act would mean any order or direction which decides competing interest / lis even for the interim i.e. pending the final disposal of the dispute before the authority. The only requirement in terms of Section 129A (1) (a) of the Act being that such decision / order (whether conditional or unconditional) is binding. In any case, we may point out that in this case the Respondent was heard by the Commissioner of Customs on 7 September 2017 before taking the decision as contained in the letter dated 25 September 2017. Therefore ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. In any case the difference between the manner in which the decisions are to be taken in case of administrative orders and quasi judicial order has long been obliterated, when civil consequences are involved, as in this case (see A.K. Kraipak v. U.O.I. 1969(2) SCC 262; Sahara (India) v. CIT 2008(14) SCC 151 ). In any case even if it is assumed that the letter dated 25 September 2017 is an administrative decision, yet it is still an order passed by an adjudicating authority and the same would still be appealable under Section 129A (1) (a) of the Act. This for the reason that in terms of the above provision the only requirement for an appeal to be entertained is that the order/decision is to be as an adjudicating authority i.e. Commissioner of Customs(I). This decision in the letter dated 25 September 2017 is in terms of Section 110A of the Act is required to be taken by the adjudicating authority. 14. Thus for the purposes of the Tribunal entertaining the appeal from the letter dated 25th September 2017, it would make no difference if it is an administrative or a quasi-judicial order / decision. However for the purpose of completeness we would like to refer to the test laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim it as of a right, de hors the statute. However having found that there is a right of appeal conferred from the orders of the Commissioner of Customs in terms of Section 129A (1) (a) of the Act, it must be construed liberally (see CIT vs. Ashoka Engineering 194 ITR 645 ). This is particularly so as sub clause (a) unlike other sub clauses to subsection 1 of Section 129A of the Act does not restrict the right of appeal to the sections of the Act under which the order is passed and/or decision taken. Moreover an appeal from a decision of provisional release under Section 110 A of the Act, would cause no prejudice to the Revenue. The goods which have been seized continue to be seized until the importer satisfies the conditions of provisional release and the adjudication proceeding are not in any manner halted / adjourned, merely because the importer is not satisfied with the terms of provisional release. Therefore we hold that the order/direction given under Section 110 A of the Act is an appealable order under Section 129A(1) (a) of the Act . 17. We have perused the decision of the larger bench of the Tribunal in Gaurav Pharma (supra) which analyses the nature of an order / d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ensue, there is hardly any distinction between an administrative order an a quasi-judicial order. The Hon'ble Apex Court observed that there might have been difference of opinions at one point of time, but it is now well settled that the thin line between an administrative and a quasi-judicial order now stands obliterated. 33. 34. An order for provisional release of seized goods is not to be issued mechanically. The same is issued after due consideration of various factors like the nature of goods, the seriousness of the offence etc. When the order has civil consequences, remedy against any adverse order is by way of appeal. Judicial review by the Courts in exercise of constitutional powers cannot be the only automatic recourse as argued by Revenue. Here, the provisions of Section 129A(1) (a) cannot be restrictively interpreted to mean that only final adjudication orders are covered under the terms a decision or order passed by Commissioner of Customs as adjudicating authority . There is neither a textual nor normative warrant for such interpretation. 35.... 36. Apart from the above, we find that the distinction sought to be made by categorizing some or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
