ORDER
K.S. Dilipsinhji, Member (T)
1. Shri Abdulla Abdul Kadar has filed this application in terms of Section 130 of the Customs Act for referring certain points of law which are claimed to arise out of the decision in the order No. 658-659/WRB/86, dated 27-5-1986 passed by the Tribunal on the applicant’s appeal registered under CD(T)(BOM)-A.No. 350/81. The application elaborately repeats the various arguments contained in the appeal of Shri Abdulla Abdul Kadar. But on behalf of the applicant, Shri Sivani summarised the following points of law which required to be referred to the High Court in his opinion :-
(1) The applicant had been discharged in the cr.prosecution case filed by the Customs authorities and their appeal to the Sessions Court had been rejected. In view, of the discharge of the applicant by the Additional Chief Metropolitan Magistrate, the advocate submitted that the order imposing the penalty on him was reqired to be set aside.
(2) Shri Sivani next argue that the applicant was denied defence by a Sr. Counsel and this amounted to non-compliance with the principles of natural justice. The Sr. Advocate Shri Karmali had made a request for the adjournment of the hearing fixed before the Tribunal. But the Tribunal did not grant it as Shri Karmali had gone abroad on his annual visit for recreation and relaxation and the Tribunal directed Shri Sivani to argue the applicant’s appeal though Shri Sivani was appearing for another appellant only.
(3) Shri Sivani next contended that the Tribunal relied on the fact that the page of ‘Mahavir Diary’ recovered from Jim’s room was from the Mahavir Diary recovered from the applicant’s car MGR 8822. Shri Sivani submitted that this was without an opinion of handwriting expert.
(4) The next point of law involved was culled out from the Tribunal’s order in para 3 of the application. This is reproduced as under :
“In his statements recorded under Section 108 of the Customs Act on different occasions from 23-7-1978 to 2-9-1978, Abdulla (Applicant) admitted his active involvement in the nefarious trade and also owned up the bulk of the aforesaid evidence. He further revealed having used the telephone No. 265555 of his co-appellant Ghouse on many occasions for making overseas calls to Wei in connection with their business.”
Shri Sivani contended that the Tribunal’s observations in this behalf may not be based on any evidence. Shri Abdulla Abdul Kadar’s statement had been incorporated in the following portion of para 3 on pages 9 to 14 of the present application. These extracts would indicate that there was no confessional statement by the applicant.
(5) Shri Sivani submitted that Shri Jim was a co-accused and his statement could not be relied upon without independent corroboration. In reply to the Tribunal’s query Shri Sivani accepted the fact that Shri Jim was respondent and not a co-accused. However, he pressed his point that the acceptance of the statement of 3im without any corroboration was not correct in law.
(6) Shri Sivani finally submitted that the adjudication order did not comply with the principles of natural justice, as laid down by the Supreme Court in the case of Ambalal v. Union of India – A.I.R. 1961 Supreme Court 264. There was no identification by Jim to establish the identity of ‘Babu’. Shri Sivani contended that Jim and the applicant were co-conspiratory and hence it was necessary for the department to make Jim identify ‘Babu’ as the applicant. However, on being questioned, Shri Sivani admitted that this point was not argued by him at the time of hearing of the appeal of Shri Abdulla Abdul Kadar by the Tribunal and therefore this point would not arise out of the Tribunal’s order.
2. On behalf of the Collector Shri Pal contended that the Reference Application practically reopened the appeal. The points of law had not been brought out succinctly and this was an attempt for the reopening of the matter decided by the Tribunal’s order. He further submitted that the Tribunal was the highest authority on determining the facts under the Customs Act. Tribunal’s order was based on evidence, both direct and circumstantial. The points made out by the learned advocate as questions of law requiring reference to the High Court were actually matter of appreciation of evidence except the first question. However, this question had been settled by the judgment of the Bombay High Court in the case of Maneklal Pokhraj Gain – 1986 (26) E.L.T. 689. The High Court had held that the criminal prosecution and an adjudication were independent proceedings and the finding in one would not apply ipso facto to the other. Shri Pal further contended that the sufficiency of evidence could not be urged before the High Court. Regarding point No. 2, Shri Pal submitted that the Tribunal heard advocate Shri Sivani on behalf of the applicant. He did not protest to say that he was not prepared to argue the appeal. This was not a question of law. Shri Pal drew our attention to paras 13 and 14 of the Tribunal’s order. As per Boormal’s case mentioned in para 14 of the Tribunal’s order, the department was not required to prove its case against an offender with mathematical precision. The point raised by the learned advocate regarding the Tribunal’s reliance on the page of ‘Mahavir Diary’ recovered from 3im’s possession and the diary recovered from the applicant’s possession was a matter of evidence, and not a question of law. As regards the advocate’s contention that there was no confession on the part of the applicant. shri Pal drew our attention to para 6 of the Tribunal’s order and to para 17 of the Additional Collector’s adjudication order which briefly brought out the salient facts in the applicant’s statement. For the aforesaid reasons Shri Pal submitted that the Reference Application should be rejected.
3. We have examined the submissions made on both the sides and we are proceeding to record our finding at seriatim on each of the points of law claimed by the applicant to a rise out of our order :
(1) It has been contended that the acquittal of the applicant by the Additional Chief Metropolitan Magistrate in the cr.case lodged by the Customs against the applicant should govern the present adjudication and appeal proceedings under the Customs Act. It is therefore prayed that this matter should be referred to the High Court for the ruling. The learned S.D.R. has pointed out that this point has already been resolved by the judgment of the Bombay High Court in the case of Maneklal Pokhraj Jain. We are inclined to agree with the S.D.R.’s submission. The learned advocate is possibly not aware of this judgment and hence he has made out the present question of law. The Bombay High Court in its judgment in the case of Maneklal Pokhraj Jain has exhaustively dealt with the question of decision in the cr.proceedings being applied to adjudication proceedings and ruled against the same. Since this point of law stands resolved under the judgment of the Bombay High Court, we see no reason in accepting the learned advocate’s contention for referring this point to the Hon’ble Bombay High Court for a ruling.
(2) The next point contended by the learned advocate is the denial of the services of a Sr. Advocate to the applicant at the time of hearing of his appeal by the Tribunal. It has been urged by Shri Sivani that the Sr. Counsel Shri Karmali was out of India on his annual vacation and therefore the hearing of the appeal which was fixed on 22-5-1986 should have been adjourned. Section 129B of the Customs Act prescribes giving an opportunity to the appellants of being heard. If therefore, the Tribunal were to wait for the convenience of a Sr. Counsel, the Tribunal’ would not be able to dispose of the appeals. While the learned Sr. Counsel could avail of an annual vacation abroad, no vacation is available for the Tribunal who has to function all the time. There is no principle of law which governs that the hearing has to be given to a particular Counsel. Therefore, we see no irregularity in not adjourning the hearing of the appeal to suite the learned Sr. Counsel’s convenience. Shri Sivani has been associated with this case right from the adjudication stage and he was familiar with the same. In any case this is not a point of law which arises out of the Tribunal’s order and it does not require to be referred to the Bombay High Court. Suffice it to say that adequate opportunity was given to the applicant for hearing as enjoined by Section 129B of the Customs Act.
(3) The third point of law indicates that the Tribunal should not have accepted the nexus between the page of the ‘Mahavir Diary’ recovered from Shri Jim’s room with the ‘Mahavir Diary’ found from the applicant’s car MGR 8822 without the opinion of a handwriting expert. The point of law thus put deals with the aspect appreciation of evidence and is not a point of law which arises out of the Tribunal’s order. The learned Additional Collector and the Board had held that this evidence was one of the several links which connected the applicant with the smuggling by Shri Jim, This evidence therefore was also accepted by the Tribunal in confirming the orders of the lower authorities against the applicant. This is, therefore, not a point of law which can be referred to the Bombay High Court.
(4) The fourth point is also one relating to appreciation of evidence rather than a question of law. The learned advocate has contended that there was no confessional statement by Shri Abdulla Abdul Radar. The learned SDR on the other hand has drawn our attention to para 17 of the Additional Collector’s order. The Tribunal has relied on the Collector’s finding in this behalf. In any case, this is a point of fact and not a question relating to interpretation of law and hence it cannot be referred to the Bombay High Court in terms of Section 130 of the Customs Act.
(5) Shri Sivani contended that Shri Jim was a co-accused and his statement without any independent corroboration should not be accepted against the applicant. Shri Sivani’s statement is not factually correct. In adjudication proceedings the affected parties are respondents and not co-accused. Their statements are acceptable as evidence and this has been clarified by the Kerala High Court in their judgment in the case of Kolatra Abbas Haji – 1984 (15) E.L.T. 129. Therefore, there is no justification for referring this point to the Hon’ble Bombay High Court for clarification.
(6) The last grievance of Shri Sivani was that the Collector has not complied with the principles of natural justice while passing the order. This question of law shows that Shri Sivani has not correctly comprehended the intention and purpose of Section 130 of the Customs Act. This Section provides for reference to the Bombay High Court for clarification of any points of law which arises out of the Tribunal’s order. The non-compliance by the Additional Collector with the principles of natural justice while passing the impugned order is not a point which arises out of the Tribunal’s order in terms of Section 129B of the Customs Act. Therefore, such a point cannot be referred to the High Court in terms of Section 130 ibid.
4 In view of the aforesaid analysis, we find that none of the points are required to be referred to the Hon’ble Bombay High Court. Accordingly we reject the application of Shri Abdulla Abdul Kadar.
K. Gopal Hegde, Member (J)
5. I agree with brother Dilipsinhji that this application has to be rejected. Then I would like to add that out of the 6 points which Shri Sivani contended as questions of law, it is necessary to point out that the points at Sr. Nos. 2, 3, 4 and 6 are not questions of law and, as such, they are not required to be referred to the Hon’ble High Court. Points at Sr. Nos. 2 and 6 relates to the denial of principles of natural justice. Whether there had been a denial of principles of natural justice depends upon the facts and circumstances and the answer to that question entirely depends upon the findings on facts.
6. The points at Sr. Nos. 3 and 4 relates to the appreciation of evidence. Unless the appreciation is wholly perverse, no question of law would arise and, therefore, referring those points to the High Court would not arise.
7 Questions at Sr. Nos. 1 and 5, no doubt, are questions of law. But then these are settled questions of law. They are already covered by the decisions of the Supreme Court and the various High Courts. If the Tribunal have failed to apply the law laid down by the Supreme Court or the High Courts, then, of course, a question of law would arise. But the questions framed do not expressly or impliedly indicate that the Tribunal had failed to apply the law laid down by the Supreme Court or the High Courts. If any question of law is settled by the Supreme Court, it ceases to be a question of law and, therefore, making reference to the High Court of such a settled question of law would not arise.
8. There is considerable force in the contention of Shri Pal that in the guise of a reference application, the applicant is seeking a review of the order in the appeal. The Tribunal has not been conferred with the power to review its earlier order. Even otherwise, the power of review is beyond the scope of reference application. While considering the reference application, the Tribunal does not sit in judgment over its earlier order. Viewed from any angle, the present application has no merit and it deserves to be rejected and accordingly the same is rejected.