TMI Blog2018 (8) TMI 1997X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal considering the circumstances of the case as to how much members should constitute the Larger Bench. It cannot be disputed that the powers vested with the adjudicating authority to be exercised for considering the prayer for provisional release of goods is circumscribed with well-settled principles of law governing the same. Such an order is not based on any policy, rather on settled principles of law. These orders cannot be issued mechanically, rather many factors are required to be considered such as the nature of goods, seriousness of offence, whether the goods being imported are prohibited, etc. etc. Any such order passed has civil consequences, hence, it cannot be opined that the same is passed by the adjudicating authority in exercise of its administrative powers rather it has rightly been opined by the Tribunal that the exercise of powers by the Commissioner under Section 110A of the Act is quasi judicial in nature and so the order passed. The language of Section 110A(l)(a) of the Customs Act is quite wide in its application to take within its umbrella such an order passed, against which appeal would lie to the Tribunal. Restrictive meaning as is suggested by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Tribunal for constitution of a Larger Bench to decide the issue. It is how the matter was listed before a Bench consisting of five member including the President of the Tribunal. 3. Learned Counsel for the appellant sought to argue that two Member Bench could not have possibly referred the matter to the Five Member Bench as it could at the best be referred to a Larger Bench of three members. In earlier case, which was doubted, the matter was considered by a third member on a difference of opinion by two members. He further submitted that any order passed under Section 110A of the Customs Act is an administrative order, hence, no appeal was maintainable against the same before the Tribunal under Section 129A of the Customs Act. 4. After hearing Learned Counsel for the appellant, we do not find any merit in the submissions made. Two Member Bench of the Tribunal having doubt on the opinion expressed by an earlier decision of Larger Bench in Akanksha Syntax Private Limited s case (supra), vide order dated 25-5-2015 referred the matter to the President of the Tribunal for consideration and constitution of a Larger Bench for decision of the issue. Relevant para thereof i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for the healthy functioning of the Tribunal that the President should have the requisite authority to refer the case to a larger Bench. That is a power which is implied in the express grant authorising the President to constitute Benches of the Tribunal for effective and expeditious discharge of its functions. 7. The Tribunal is constituted by the Central Government under Section 129 of the Customs Act. Sub-sections 5 and 6 of Section 129C of the Customs Act, read as under : - 129C. (5) - If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the President for hearing on such point or points by one or more of the other members of the Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case including those who first heard it : Provided that where the members of a Special Bench are equally divided, the point or points on which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssentially an administrative decision. It is not adjudicatory, even though it may have been passed by an adjudicatory authority. 10. Scope of the provisions of Sections 110 and 110A of the Customs Act and the jurisdiction exercised by the adjudicatory authority has been summed up by the Tribunal in paras 27 and 28 of the order, which are extracted below :- 27. Section 110 of the Act empowers that if the proper officer has reasons to believe that any goods are liable to confiscation under this Act, he may seize such goods; upon seizure the said goods are in control/custody of the customs department. Ownership of seized goods continues with the person from whom such goods were seized. Section 110A provides for provisional release of seized goods pending the order of the adjudicating authority. Such release can be ordered only by adjudicating authority with such conditions as he may require. Later, sustainability of seizure and consequences for the owner will be decided after due completion of investigation, by the adjudicating authority. 28. Order for provisional release restores the seized goods to the owner. The conditions imposed for such restoration is decided by the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Relevant paras thereof are extracted below :- 20. But there are cases where there is no lis or two contending parties before a statutory authority yet such a statutory authority has been held to be quasi-judicial and decision rendered by it as quasi-judicial decision when such a statutory authority is required to act judicially. In Queen v. Dublin Corporation, (1878) 2 ILR 371, it was held thus : In this connection the term judicial does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, makes estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence would be judicial acts. 21. Atkin L.J. as he then was, in Rex v. Electricity Commissioners, (1924) 1 KB 171 stated that when any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial. 24. Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi-judicial authority if it is required to act judicially. 25. Coming to the second argument of Learned Counsel for the respondent, it is true that mere presence of one or two attributes of quasi-judicial authority would not make an administrative act as quasi-judicial act. In some case, an administrative authority may determine question of fact before arriving at a decision which may affect the right of an appellant but such a decision would not be quasi-judicial act. It is different thing that in some cases fair-play may demand affording of an opportunity to the claimant whose right is goi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent. The afore-quoted passage shows that where an authority whose decision is dictated by policy and expediency exercises administratively although it may be exercising functions in some respects as if it were judicial, which is not the case here. (emphasis supplied). 14. It cannot be disputed that the powers vested with the adjudicating authority to be exercised for considering the prayer for provisional release of goods is circumscribed with well-settled principles of law governing the same. Such an order is not based on any policy, rather on settled principles of law. These orders cannot be issued mechanically, rather many factors are required to be considered such as the nature of goods, seriousness of offence, whether the goods being imported are prohibited, etc. etc. Any such order passed has civil consequences, hence, it cannot be opined that the same is passed by the adjudicating authority in exercise of its administrative powers rather it has rightly been opined by the Tribunal that the exercise of powers by the Commissioner under Section 110A of the Act is quasi judicial in nature and so the order passed. 15. The language of Section 110A(l)(a) of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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