Bombay High Court
Vkc Nuts Pvt. Ltd vs The Commissioner Of Customs (Ns-V) on 13 September, 2019
Author: Nitin Jamdar
Bench: M.S.Sanklecha, Nitin Jamdar
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Sequeira
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CUSTOM APPEAL NO. 32 OF 2019
VKC Nuts Pvt. Ltd. a company incorporated
under the Companies Act, 1956 and having its
Registered office at 27 C/C, Gandhi Nagar,
Jammu Tawi0 180 004 (J & K) and its
Corporate Office at D-63, Sector A-2, Tronica
City, Industrial Area, Loni, Ghaziabad-201 102 .. Appellant
Versus
The Commissioner of Customs (NS-V),
Jawaharlal Nehru Custom House, Nhava
Sheva, Dist. Raigad, Maharashtra - 400 707 .. Respondent
Mr.Prakash Shah i/b PDS Legal, for the Appellant.
Mr.Pradeep S.Jetly a/w Mr.J.B.Mishra, for the Respondent.
CORAM : M.S.SANKLECHA &
NITIN JAMDAR, JJ.
Date : 13 September 2019.
JUDGMENT :(Per Nitin Jamdar, J.) This Appeal filed under section 130 of the Customs Act, 1962 challenges the order dated 31 July 2019 passed by the Customs, Excise and Service Tax Appellate Tribunal Mumbai, dismissing the Appeal filed by the Appellant bearing No.C/86973 of 2019.
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2. The Tribunal has dismissed the Appeal filed by the Appellant as not maintainable. In the circumstances, the Appeal is admitted on the following substantial question of law.
'Whether the Appellate Tribunal was right in holding that no appeal under section 129A(1) of the Customs Act, 1962 is maintainable against the order passed by the Commissioner of Customs dated 28 June 2019 against the order /communication rejecting the request of original release of seized goods?'
3. The Appellant is a Company incorporated under the Companies Act, 1956 and is engaged in a business of import of food items inter alia of in-shell walnuts, for trading in India. During the course of its business, the Appellant purchased Duty Free Import Authorizations issued by the Director General of Foreign Trade under Foreign Trade Policy 2009-2014(FTP), for export of certain food items from the open market. The Appellant imported in-shell walnuts and claimed exemption under the policy. The Appellant filed Bills of Entry for import of in-shell walnuts and claimed exemption. According to the Appellant the proper officer assessed the Bills of Entry and permitted clearance of imported in-shell walnuts. The Commissioner of Customs initiated inquiry on the premise that the Appellant was not entitled to import in-shell walnuts against the Duty Free Import Authorization for export of food items i.e. Assorted Confectionery and Biscuits. Premises of the Appellant were searched. Summons was issued by the Commissioner. The ::: Uploaded on - 23/09/2019 ::: Downloaded on - 19/04/2020 00:02:54 ::: 3 3 CUAPP 32-2019.doc goods belonging to the Appellant were seized. Subsequently by order seizure was lifted by the Respondent/Commissioner of Customs on the condition of the Appellant executing a Bond and furnish a Bank Guarantee with self-renewal clause with further directions to submit an undertaking. The Appellant filed an appeal before the Appellate Tribunal under Section 129A(1) of the Customs Act, 1962. The appeal was rejected by the impugned order dated 31 July 2019.
4. The Appellant filed the present appeal annexing an order which only stated that the early hearing application was allowed dismissing the appeal and disposing of the stay application. Reasoned order was available subsequently, which by way of amendment is placed on record.
5. Perusal of the impugned order shows that what was before the Tribunal was an application for early hearing which was allowed and the appeal was taken up immediately. The reason why the appeal was dismissed as not maintainable is to be found in paragraph (4) of the impugned order which reads thus :
'The appellant in this case has filed the present appeal against the impugned communication dated 28.06.2019 of the Commissioner of Customs, SIIB, Raigad, wherein the request of the appellant for provisional release of the seized goods was not considered. On perusal of the statutory provisions, we find that sub-section (1) of Section 129A of the Customs Act, 1962 provides that a decision or order passed by the Commissioner as an adjudicating authority, can be ::: Uploaded on - 23/09/2019 ::: Downloaded on - 19/04/2020 00:02:54 ::: 4 3 CUAPP 32-2019.doc appealed against before the Tribunal. The term 'adjudicating authority' has been defined in sub-section (1) of Section 2 ibid, to mean 'any authority competent to pass any order or decision under this Act'. Rejection of the request for provisional release of the goods seized by the department cannot be considered as an order or decision passed or communicated under the Customs Act, 1962. Thus, the said communication dated 28.06.2019 of the learned Commissioner of Customs in the present case, cannot be considered as an order or decision for the purpose of sub-section (1) of Section 129A ibid, , for entertaining the appeal by the Tribunal'.
Thus, the Tribunal opined that the communication dated 28 June 2019 regarding prayer of provisional release is not appealable to the Tribunal under section 129A(1) of the Customs Act, 1962.
6. Mr.Shah, the learned counsel for the Appellant has placed on record decision of this Court in the case of Commissioner of Customs (Import-I) Vs. S.S.Offshore Pvt. Ltd.- 1 Similarly, two orders by Division Bench of this Court passed in the case of Transcon Industries & Anr. vs. The Union of India & Ors. -2 and in the case of Acadian Export Pvt. Ltd. vs. The Union of India & Ors.-3 are also placed on record.
7. The Division Bench in the case of S.S.Offshore Pvt. Ltd. has considered the provisions of section 129A(1) of the Act of 1962 1 -2018 (361) E.L.T 51(Bom.) 2 -W.P No. 9737 of 2019 dt. 06.09.2019 3 -W.P. No.4276 of 2019 dt. 09.04.2019 ::: Uploaded on - 23/09/2019 ::: Downloaded on - 19/04/2020 00:02:54 ::: 5 3 CUAPP 32-2019.doc and has held that an appeal from communication / order in respect of provisional release of goods is maintainable before the Tribunal. The Division Bench also adverted to the aspect as to whether such communication in respect of provisional release of goods is an administrative decision and opined that this aspect would not make a difference as regards the question of maintainability of appeal under section 129A(1)(a) of the Act of 1962. In the Writ Petition No.9737 of 2019 and Writ Petition No.4276 of 2019 when the assessee directly approached this Court with the case of prayer for provisional release of goods, the Division Bench has relegated the Petitioners therein to the remedy of appeal, holding the appeal is maintainable.
8. Thus, the position is settled that an appeal would be maintainable from a communication or order, whatever be the nomenclature in respect of provisional release of goods before the Appellate Tribunal. Presumably this position of law was not brought to the notice of the Tribunal when it passed the impugned order. In these circumstances, the question of law as framed will have to be answered in favour of the Appellant.
9. Accordingly, Appeal is allowed. The impugned order dated 31 July 2019 is quashed and set aside. The Custom Appeal No.C/86973 of 2019 stands restored to the file of the Customs, Excise and Service Tax Appellate Tribunal, Mumbai. The Tribunal ::: Uploaded on - 23/09/2019 ::: Downloaded on - 19/04/2020 00:02:54 ::: 6 3 CUAPP 32-2019.doc will decide the same on its own merits within a period of four weeks from the order of this Court reaches the Tribunal. Registry is directed to communicate the order to the Tribunal forthwith.
10. Appeal disposed of in above terms.
(NITIN JAMDAR, J.) (M.S.SANKLECHA, J.)
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