ORDER
K.S. Venkataramani, Member (T)
1. The following points have been raised which according to the applicant Commissioner are points of law arising out of the Tribunals order :-
(i) Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal has erred in holding that the Customs authorities have no power to confiscate the goods and impose penalty on M/s. Pawan Enterprises only on the basis that the goods seized and later confiscated, are under OGL.
(ii) Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal has erred in not taking into consideration the provisions of Sections 111 and 112 of the Customs Act, in their entirety.
2. The ld. DR Shri S.V. Singh, arguing on the applications submitted that the mere fact that the goods are imported under OGL cannot mean that they are not confiscable under the Customs Act, 1962. OGL is only for the authority to import the goods but there are other Customs procedure and formalities the breach of which can result in the confiscation of the goods under the law. In the facts of the present case the ld. DR urged that the appellants had not discharged the obligation cast on them to show that the goods in question are properly imported and cleared from the Customs. It may be noted that the goods in question were in substantial quantity of 1243 pieces weighing 10,000 kg. valued at Rs. 35.00 lacs. When the purported supplier of the goods denied the supply as happened in this case, it is for the Respondents to have indicated the correct source to the Department from where they obtained the goods. In this case therefore when the Respondents have not furnished information to establish that the goods have been properly imported the mere fact that the goods are those which are covered under OGL cannot be the ground for setting aside their confiscation as has been done by the Tribunal.
3. Shri S.N. Kantawala appeared for M/s. Pawan Enterprises and submitted that what the applications seek is the re-appreciation of evidence in this case which is not permissible in a reference application. Shri S.D. Nankani the ld. Counsel for the Applicant M/s. Gulab Impex Enterprises and Shri Vinod Bansal contended that the application is to the effect that the Tribunal has not appreciated the findings in the Commissioner’s adjudication order. Therefore it is clearly asking for a appreciation again of the evidence by the Tribunal. Further, there is a fresh reference to the offence attracting provisions of Foreign Trade and Development (Regulation) Act, 1992 in the reference application, which has not been taken in Show Cause Notice. This is also not permissible. The ld. Counsel further pointed out that the reference application is on confiscation of the goods and personal penalty of M/s. Pawan Enterprises and completely leaves out of the other Respondents Gulab Impex Enterprises and Shri Vinod Bansal. The point drafted for reference that Section 111 and Section 112 of the Customs Act, should have been taken into consideration in their entirety by the Tribunal is vague and unspecific.
4. We have carefully considered the submissions made by all the parties. A perusal of the reasoning in the Tribunal order in Para 6 thereof, would show that the Tribunal has gone into the evidence on record in this case. The finding is that where the goods are not covered by any notification Under Section 123 of the Customs Act, or provisions of Chapter IV-A are not invoked and the burden lies heavily on the Department to prove the illicit nature of the import and the reasoning further go to show Tribunal’s conclusion that Respondents case gets further strength by the fact that the goods in questions were permissible to be imported under OGL and to that extent the obligation caused on Department is even more. It is in this context that the observation relating to OGL import and confiscation appearing in the order has to be seen. Apart from the above, a perusal of the application and the submissions made would show that the exercise required is one of reappreciation of evidence, which is not permissible in a reference application. Therefore, it is held that no point of law requiring reference to the Hon’ble High Court arises out of the impugned order of the Tribunal. The reference applications are therefore rejected.