ORDER
Shiben K. Dhar, Member (T)
1. This application seeks reference of following alleged question of law said to arise out of Tribunal Order No. 360/94-NRB. The reference is sought on the ground that “The order of Appellate Tribunal suffers from several errors of law which are apparent on the face of records” and these have been detailed as under :
(1) The Appellate Tribunal has committed an error of law by arriving at a finding of fact with no evidence as regards the place from which the goods in question were lost through pilferage or otherwise;
(2) The Appellate Tribunal has committed an error of law by reaching a conclusion of facts by not only not taking into account the evidence on record, by going against them;
(3) That the finding of the fact of the Appellate Tribunal that the goods were lost after the clearance order was issued, is based on conjectures and there is no evidence on record to support this conclusion;
(4) The Tribunal has erred in not appreciating the fact that if the goods are lost before clearance order by an appropriate authority is made for home consumption or deposit in a warehouse, no liability for payment of duty by the applicant would arise under Section 13 of the Customs Act;
(5) The Tribunal while relying on Section 59 of the Customs Act in relation to the bond given by the applicant and on that count rejecting the NO LIABILITY plea of the applicant, has erred in not appreciating the established principle of interpretation of reading Sections 59 and 13 together and construe them harmoniously;
(6) The Tribunal has failed in not appreciating that liability under bond given under Section 59 would arise only when there is a liability to pay duty and would not cover a case which falls under Section 13 which clearly provides for a situation when there is no liability to pay duty.
(7) That even assuming that the goods were lost during the transit from Airport to CWC, Okhla, the Tribunal failed to appreciate that the goods all through remained in the custody and under the control of the customs department and the Tribunal failed to appreciate that this point had been taken note of by the Tribunal earlier while considering the stay application;
(8) The Tribunal failed to appreciate that liability for the loss of the goods always lay on the person under whose custody and control goods were at the time they were lost. The Appellate Tribunal committed error of law in not appreciating that the respondents are legally responsible for loss of goods and there is no liability on the appellants to pay duty on goods which were lost while in custody of the respondents.
2. The facts in brief are that the appellants M /s. Nitul Data Systems Pvt. Ltd. imported components for computers and warehoused them after removing the same from Airport Cargo Complex, IGI Airport to Bonded Warehouse at Okhla. The goods at the time of finalisation of the Bond Bill of Entry, were examined at first port of importation as per invoice. Subsequently when the goods were examined, before bonding, some of the components i.e. 102 pcs. and 319 pcs. of ICE and 258 pcs. of Resistors valued at Rs. 93,221/- were found short. It was alleged that shortage of goods was detected after the proper officer had made orders for warehousing and therefore appellants were liable to pay duty of Rs. 91,358/- on the goods found short.
3. It was urged before Tribunal that custody of goods at any point was not handed over to the appellants; goods always remained under Customs supervision and even while transporting these goods from Airport to Okhla the goods were under Customs supervision and therefore the appellants cannot be asked to pay duty on the goods found short.
4. The Tribunal held that as per the Orders of the Assistant Collector the case was examined with reference to invoice as to quantity and the goods were examined and found in order. The appellants were also satisfied at the time of examination that there was no deficiency in the quantity of goods. The goods were removed from IGI Airport under Section 59 of the Customs Act and therefore the Tribunal relied upon earlier decision of the Tribunal in case of Union Carbide India Ltd. v. CC Madras – reported in 1985 (22) E.L.T. 102 (Tri.) under which it held that duty liability falls on the importers in terms of the Bond executed under Section 59 of the Customs Act, 1962.
5. Ld. Advocate for the appellants submitted that the Tribunal failed to appreciate that even though Assistant Collector, Airport at the first port of importation ordered that quantity and description of the goods be checked, the Shed Appraiser had checked only one packet and that in absence of 100% examination the goods could have been lost at any stage. The movement of the goods from the Airport to the warehouse was under Customs supervision and the Additional Collector in his order had referred to the statement given by the Escorting Officer that he did not see any goods being removed from IGI Airport to CWC Okhla. The Ld. Advocate therefore submitted that they cannot be asked to pay Customs duty on the goods lost as loss could have taken place at the first port of importation itself and the Tribunal erred in not taking into account these relevant facts.
6. Ld. DR submitted that Tribunal considered various submissions made and after evaluating the evidence came to the conclusion that since on examination goods had been found in accordance with the quantity shown in the invoice the duty liability would squarely fall on the importers in terms of bond executed under Section 59 of the Customs Act, 1962.
7. I have given careful consideration to the submissions made by both the sides. The whole tenor of the reference application is that Tribunal failed to appreciate that goods were not with the appellants and therefore Tribunal should have held that the appellants were eligible for remission of duty in terms of Section 13 of the Customs Act, 1962 and that the Tribunal failed to appreciate these facts while rejecting their appeal.
8. In case of Sir Shadi Lal Sugar and General Mills Ltd. and Anr. v. Commissioner of Income-Tax, New Delhi reported in 1987 (31) E.L.T. 325 (S.C.), Supreme Court held that reference does not lie on question of pure facts arrived at by the Tribunal. The Apex Court relied upon case of Omar Salay Mohammed Sait v. Commissioner of Income-Tax reported in 37 ITR 151 (AIR 1959 SC 1239) which held that change of perspective in viewing a thing does not transform a question of fact into a question of law. In Omar Salay Mohammed Sait case (supra) the Supreme Court held that Tribunal is a fact rinding Tribunal and if it arrived at its own conclusion of fact after due consideration of the evidence before it the Court could not interfere. In case of K.P.V. Shaik Mohammed Rowther & Company Pvt. Ltd. v. CC, Madras – reported in 1987 (31) E.L.T. 489 (Tri.), this Tribunal held that Appellate Tribunal’s findings in appreciation of facts and circumstances of a case do not make a question of law meriting reference. In case of Ramji Lal Kundan Lal, New Delhi v. CCE, New Delhi reported in 1987 (27) E.L.T. 164 (Tri.), where the issue was whether confiscation order was illegal for failure to adjudicate upon issue of alleged ‘ownership’; the Tribunal held that it is well established proposition by now that only questions of law, which arise out of facts found by the Tribunal can be a subject matter of the Reference to the High Court. Conversely in a case where there are no facts found in favour of the party then no question of law can arise simply because some facts, or issues or claims had been raised by the party as part of their own defence, which defence has been found by the Tribunal to be not credible and acceptable. The Tribunal held that while considering a Reference Application, the Bench disposing of the same could not approach the matter as if it were sitting over the appeal, against the Tribunal’s own order.
9. Dealing with the question whether under the facts and circumstances of the case, the findings against the applicant holding him liable to penalty under Section 112 of the Customs Act, 1962 is supported by evidence and/or is unreasonable or perverse in nature, and whether the Order of penalty should be set aside, the Tribunal in case of S.D. Sakpal and Anr. v. CC, Bombay -reported in 1988 (33) E.L.T. 181 (Tri.) held that the question is general in nature and it requires consideration of all the material placed before the Tribunal. In the guise of Reference Application the applicants cannot seek review of the judgment earlier passed or request this Bench to sit in appeal over the orders earlier passed.
10. In case of Mohd. Anees & Rafiq Ahmed v. CC – reported in 1990 (48) E.L.T. 146 (Tri.) it was again held that question of facts based on appreciation of evidence made by Tribunal cannot be referred to the High Court. Relying upon observations of Supreme Court in case of Omar Salay Mohammed Sait v. Commissioner of Income-Tax (supra) – the Tribunal in case of Ramji Lal Kundan Lal, New Delhi v. CCE (supra) held that in case of pure question of fact, an inference from the fact is as much a question of fact as the evidence of the facts and a finding on a question of fact is open to attack, as erroneous in law, only where there is no evidence to support it or if it is perverse.
11. The Tribunal in its Order referred to examination of the goods conducted by Customs Officers before removal which indicated that goods were in fact as per invoice and the appellants did not raise any objection to it. If non-consideration of the fact of transport of goods under Customs supervision from Airport to CWC was an error apparent on the face of records, the applicants could have filed application for Rectification of Mistake under Section 129B(2) of Customs Act, 1962.
Tribunal has held that since appellants were satisfied with the examination conducted and removed goods after executing bond under Section 59 of Customs Act, 1962 they were liable to pay duty on the shortages detected at destination. This was a finding of fact arrived at after appreciating evidence on record and therefore no question of law can be said to arise out of such Order. The Reference Application is therefore rejected.