Delhi High Court has held that appeal against provisional release of goods can be filed before Commissioner (Appeals). The Court in a recent judgement (Gurdeep Kaur v. Commissioner) noted that the order in relation to provisional release falls within the description of “order or decision” as provided in Section 128 of the Customs Act, 1962. Adducing reason for not entertaining the writ petition, the High Court said that petition was filed on the mistaken belief that there is no remedy under Customs Act. The petitioner was directed to file appeal before the appropriate authority.
Interestingly, on similar issue, recently CESTAT, New Delhi has asked the President of CESTAT to constitute a 5 Member Larger Bench to consider the question as to whether order of provisional release passed by the Commissioner under Section 110A of the Customs Act is appealable under Section 129A before the Appellate Tribunal.
The Division Bench of the Tribunal in the case of Gaurav Pharma Ltd. v. Commissioner did not agree with the decision of the Larger Bench in the case of Akanksha Syntax Pvt. Ltd., which had held that appeal against such order was not maintainable before the Tribunal. Based on analysis of Section 110A on provisional release and Section 129A on appeal to the Tribunal, the Division Bench held that appeal against order of provisional release passed by Commissioner as adjudicating authority, lies before the Tribunal.
The Division Bench of the Tribunal in the case of Gaurav Pharma Ltd. v. Commissioner did not agree with the decision of the Larger Bench in the case of Akanksha Syntax Pvt. Ltd., which had held that appeal against such order was not maintainable before the Tribunal. The Division Bench in this regard was of the view that any person aggrieved by decision or order passed by the Commissioner of Customs as an adjudicating authority may appeal to the Tribunal.