The exercise of powers by the Commissioner under Section 110A of the Customs Act is quasi-judicial in nature, and an appeal lies before the CESTAT under Section 129A(1)(a) of the Customs Act.

JUDGMENT

Rajesh Bindal, J. - The Revenue is in appeal against the order passed by the Five Member Bench of the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, New Delhi (for short, 'the Tribunal'), arising out of Appeal Nos. C/53878/2014- CU(DB) and C/53901/2014-CU (DB), raising following substantial questions of law:-

"(i) Whether an appeal lies before CESTAT against the order passed by the Commissioner (Customs) under Section 110A of the Customs Act, 1962 for provisional release of the goods or not?

(ii) Whether the reference of CESTAT's Larger Bench of 5 Members is legally maintainable on the basis of grounds summarized?

(iii) Whether the Akanksha Larger Bench decision of the CESTAT dated 09.10.2012 being based upon the correct legal position requires any interference?

(iv) Whether the Larger Bench of 5 Members may like to answer the reference made to it to the effect that an appeal against a decision or order passed by Commissioner of Customs for provisional release of seized goods documents, etc., made under Section 110A of the Customs Act, 1962 lie before the CESTAT under Section 129(1)(a) of the Customs Act, 1962?"

2. The appeals were preferred before the Tribunal against the order passed by the Commissioner of Customs and Central Excise, Rohtak, directing provisional release of goods in exercise of powers under Section 110A of Customs Act, 1962 (for short, 'the Customs Act'). Two Member Bench of the Tribunal while disagreeing with earlier order passed in Akanksha Syntax Private Limited vs CC (General), Mumbai,2013 289 ELT 186 (Tri.- Mumbai), wherein it was opined that the appeal against the order passed under Section 110A of the Customs Act, is not maintainable, referred the matter to the President 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 is extracted below:-

"The registry is directed to place the records before the Hon'ble President for consideration and to constitute the Larger Bench of this Tribunal to decide above mentioned issue."

5. A perusal of the aforesaid para of the two Member Bench of the Tribunal shows that first contention raised by learned counsel for the appellant is totally misconceived as the matter was not referred to be heard by a bench consisting of five members by the two members as it was merely referred to the President of the Tribunal for constitution of a larger Bench. Thereafter, it was an administrative action by the President of the Tribunal considering the circumstances of the case as to how much members should constitute the larger Bench.

6. Issue regarding jurisdiction of the President of the Tribunal to constitute larger Bench for hearing of a case was considered by Hon'ble the Supreme Court in Union of India and another vs Paras Laminates (P) Limited , (1990) 4 SCC 453, and it was opined that the President of the Tribunal has the power to co