per : Ashok Jindal, Member (J)]. - The applicants have filed applications for early hearing of their appeals on the ground that it is a case of live consignment and on the request for provisional release of the goods, the Commissioner of Customs (General) has ordered provisional release of the goods under Section 110A of the Customs Act on the following conditions :-

Payment of differential duty on the basis of redetermined "(a) value as proposed by the DRI (DZU) through TR-6 challan.

Furnishing a Bond equivalent to 100% of the redetermined (b) assessable value as proposed by the DRI (DZU).

Securing a Bank Guarantee with a self renewal clause (c) equivalent to the 30% of the redetermined assessable values as proposed by DRI (DZU) for covering the redemption fine and penalty.

Furnishing of an undertaking that they will not dispute the (d) identity of the goods during the course of adjudication/prosecution."

2. Before allowing the applications for early hearing of the appeals, it was opposed that the appeal against the order of the Commissioner of Customs (General) under Section 110A of the Customs Act, 1962 is not maintainable before this Tribunal.

3. Therefore, the issue before us is that whether the appeal against the order of the Commissioner of Customs (General) who ordered for provisional release of goods under Section 110A of the Customs Act is maintainable before this Tribunal or not.

4. The learned counsel for the applicant submitted that the appeal against the order of the Commissioner of Customs (General) under Section 110A of the Act is maintainable before this Tribunal as held by this Tribunal in the case of Swiber Offshore Construction Pte. Ltd. v. CC(I), Mumbai vide Order Nos. M/426-427/11/CSTB/C-I, dated 25-10-2011 [2012 (281) E.L.T. 545 (Tri.-Mum.)] and the same was affirmed by the Hon'ble Supreme Court in Civil Appeal No. 10085 of 2011, dated 24-11-2011. The same view has been taken by the Hon'ble Bombay High Court in the case of Indoworth (India) Ltd. v. UOI 2010 (254) E.L.T. 62 (Bom.).

5. On the other hand, the learned AR relied on the decision in the case of Navshakti Industries Pvt. Ltd. v. CC, New Delhi - 2008 (225) E.L.T. 522 (Tri.-Del.) wherein this Tribunal has held that order envisaged in Section 110A cannot be treated an order in the nature of adjudication.

6. Heard both sides.

7. We have gone through the provisions of Section 110A which provides provisional release of goods, documents and things seized pending adjudication, which is reproduced hereunder :-

"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."

As per the provisions of Section 110A, the adjudicating authority can release the goods seized under Section 110A on taking a bond from him in the proper form with such security and conditions. The issue of provisional release has come up before this Tribunal in the case of SwiberOffshore (supra) wherein the issue whether the appeal against the order of provisional release under Section 110A of the Customs Act is maintainable or not was raised before the third Member but the same was not entertained by the third Member as the issue was not referred to him and finally in that case the appeal was allowed by modifying the order of the Commissioner of Customs for provisional release under Section 110A of the Customs Act, 1962. The said order was affirmed by the Hon'ble Supreme Court, which means that the Apex Court has examined the issue of maintainability of the appeal against the order of provisional release under Section 110A of the Customs Act and as this Tribunal has modified the conditions of provisional release passed by the Commissioner of Customs as maintainable.

8. In the case of Navshakti Indu