ORDER
1. M/s. Bharat Earth Movers Ltd., Madras, by an application dated 2lst. May, 1983 require the Tribunal to refer the following question, claimed to be of law. arising out of order in Appeal No. CD (T) (MAS) 43/80 dated 10.3.83 of this Tribunal in the case of Bharat Earth Movers Ltd. v. Collector of Customs, Madras:
Whether on the facts and circumstances of the case, the Tribunal was right in holding that the applicant is not entitled to refund of customs duty paid under Section 13 of the Customs Act, 1962 ?
2. By our order referred to supra, a revision application preferred with the Government of India, transferred to the Tribunal and dealt with as an appeal, had been dismissed on two counts:
1. In a case of pilferage the provisions of Section 13 of the Act would be applicable and not Section 23(1);
2. In the circumstances of that case it cannot be conclusively established that pilferage took place prior to the making of the order of clearance by the proper officer ; hence rejection of a refund claim by the authorities below in terms of Section 13 of the Act is correct in law and is based on facts.
3. The learned advocate for the applicant urged that in the present case an order for clearance in terms of Section 47 of the Act had been obtained even prior to the landing of the concerned goods by processing a tariff entry, as permitted by the proviso, to Sub-section (3) of Section 46 read with Section 17(4) of the Act. The fact of having paid duty on the basis of an assessment in terms of these sections prior to the landing of the goods should not be a bar to a claim for refund in terms of Section 13. In the circumstances of the case, the conditions set out in Section 13 cannot be fulfilled. Such non-fulfilment should not be held against the claimant. This aspect involves determination of question of law regarding interpretation of Section 13. We note that this argument has been put forth before us for the first time now.
4. No doubt the Proviso to Section 46(3) permits an importer to present the Bill of Entry even before the presentation of a manifest and hence before the arrival of the vessel bringing the goods. Section 17(4) provides for assessment of the goods to duty on the basis of the statement made in the entry relating thereto and the document produced and information furnished ; but Section 47 provides that when the proper officer is satisfied that goods entered are not prohibited and the importer had paid the import duty assessed thereon, he may make an order permitting the clearance of the goods for home consumption. A provision enabling an importer to make entry before arrival of the goods and to have them assessed, does not necessarily require the obtaining of an order for clearance of the goods for home consumption prior to their arrival or landing How ever, once un order for clearance has in fact been obtained, the other provisions of the Act should apply ; Section 13 provides that an importer is not liable to payment of duty in respect of goods which are pilfered
(a) after their unloading and
(b) before the proper officer has made an order for clearance of the goods for home consumption.
That Section should, be taken to have been so worded, taking into consideration the other provisions of the Act namely Sections 46(3), 47 and 17(4) Determination of liability of an importer not to pay duty on pilfered goods’ does not relate itself to the assessment of the goodswhether prior to their arrival or after their arrival. The points for determination under Section l3 referred to above are questions of fact and not of law. In the circumstances of the present case, we have found against the appellant on these points of fact. In terms of Section 130 of the Act a reference to the High Court lies only on a question of law. Hence the present application does not survive.
5. The learned advocate sought to argue that the order of the Tribunal refers to the non-applicability of the provisions of Section 23 of the Act to the case. Whether Section 23 or Section 13 applies is a question of law We drew the attention of the advocate to the formulation of the question ‘in the consist of two parts, the applicant has chosen to frame a question only in terms of Section 13. We note that in the main appeal, initially, the claim of the applicant appears to have been rejected by the Assistant Collector as not maintainable in terms of Section 13 of the Act. At the time of appeal before the Appellate Collector of Customs also, the issue decided was the maintainability of the claim in terms of Section 13. In the Revision, reference was made to Section 23 in the following manner :
We would like to mention that even though pass order was obtained earlier than the date of clearance of the package, the same was physically cleared from Madras Port Trust custody only after conducting independent Ship Survey in the presence of Customs Officer. In this connection, we bring to your kind notice that we have brought the shortages to Customs’ notice before clearance as stipulated in Section 23 of the Customs Act. Hence, we request you to admit our Revision Application and order refund towards survey shortages.
Thus when the appeal was considered by us, the point raised was the applicability of the provisions of Section 23 of the Act. We had found against the applicant in our main order. However, in the present application for reference, the applicant has chosen to limit the reference to Section 13. At this stage the learned advocate sought permission to amend the present application to include a reference to Section 23 and frame the question accordingly. We note that the order in appeal was passed by us on 10.3,83. The period available for making an application for reference to the High Court is only sixty days from the date of service of the order. (In the present case it is stated to be 23.3.83). Even the discretion to extend this period is only for a further period of thirty days. As of date more than 90 days have already lapsed. Any amendment on the question posed earlier to include a substantially new point, would in effect mean the filing of a new Reference Application beyond the period of 90 days permissible under the Act. We, there-] fore, informed the advocate that we would not be in a position to admit an application for amendment at this stage.
6. In the result, the proposed reference, in our view, is one on facts and not on law. We refuse to state the case to High Court, as required by the applicant, oh the ground that no question of law arises.