Page 254 - ELT_15th July 2020_Vol 373_Part 2

236 EXCISE LAW TIMES [ Vol. 373

cide a case according to What they perceive to be the correct law and fact
because of an impediment arising from an earlier decision with which they
cannot honestly agree. In such cases, it is necessary for the healthy function-
ing 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 ex-
press 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 Sec-
tion 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 Presi-
dent for hearing on such point or points by one or more of the other mem-
bers 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 they differ shall be decided by the President.
(6) Subject to the provisions of this Act, the Appellate Tribunal shall have
power to regulate its own procedure and the procedure of the Benches
thereof in all matters arising out of the exercise of its powers or the dis-
charge of its functions, including the places at which the Benches shall hold
their sitting.”
8. While concurring with the view expressed, we do not find any merit
in the aforesaid contention raised by Learned Counsel for the appellant regard-
ing constitution of the Five Member Bench for hearing of the appeal.
The second issue sought to be raised is regarding maintainability of ap-
peal against the order passed by the Commissioner for provisional release of
goods in exercise of powers under Section 110A of the Customs Act. Relevant
provisions of the Act are extracted below :-
Customs Act, 1962
“Section 2(1) “adjudicating authority” means any authority competent to
pass any order or decision under this Act, but does not include the Boards,
Commissioner (Appeals) or Appellate Tribunal;
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 security and conditions as the adjudicating authority may require.
Section 129A : Appeals to the Appellate Tribunal. - (1) Any person ag-
grieved by any of the following orders may appeal to the Appellate Tribu-
nal against such order -
(a) a decision or order passed by the Principal Commissioner of
Customs or Commissioner of Customs as an adjudicating au-
thority;
(b) an order passed by the Commissioner (Appeals) under Section
128A;
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