Page 255 - ELT_15th July 2020_Vol 373_Part 2

2020 ] COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX v. GAURAV PHARMA LTD. 237
(c) an order passed by the Board or the Appellate Commissioner
of Customs under Section 128, as it stood immediately before
the appointed day;
(d) an order passed by the Board or the Principal Commissioner
of Customs or Commissioner of Customs, either before or af-
ter the appointed day, under Section 130, as it stood immedi-
ately before that day :”
9. The contention sought to be raised by the appellant in support of the
argument that no appeal is maintainable against order passed by the Commis-
sioner for provisional release of goods is that such an order is essentially an ad-
ministrative 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 con-
ditions 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 adjudicating
authority. Such decision will certainly have legal consequence to the owner
of goods.”
11. In the light of powers exercised by the adjudicatory authority, now
the question arises as to whether in terms of provisions of 129A of the Customs
Act an appeal is maintainable before the Tribunal, in our opinion, the answer
would be in positive. Section 129(l)(a) of the Customs Act provides that any per-
son aggrieved by any of the following orders may appeal to the Tribunal against
such orders, if such an order has been made by the Principal Commissioner of
Customs or Commissioner of Customs as an adjudicatory authority. The fact that
order of provisional release of goods is passed by an adjudicatory authority is
not in dispute. The only distinction sought to be made is that it has administra-
tive character and not quasi judicial to entitle a party effected by it to file appeal
before the Tribunal. We do not find any error in the observations made by the
Tribunal in the order impugned that the manner of exercise of powers having not
been specifically defined in the Customs Act to the extent which of the order will
be administrative or quasi judicial.
12. Under Section 110A of the Customs Act, the adjudicatory authority
exercises wide range of discretionary powers. Whenever such an power is exer-
cised, the necessary consequences of which is determination of rights of the par-
ties, the principles of natural justice step in, unless specifically excluded by the
statute. It is not the case of the Revenue that the statute bars opportunity of hear-
ing to the party affected. It is settled principle of law that whenever civil conse-
quences follow from an order passed by an authority, it assume the character of a
EXCISE LAW TIMES  15th July 2020  255