ORDER
K. Gopal Hegde, Member (J)
1. This Reference application under Section 130(1) of the Customs Act is by the Collector of Customs (P), Ahmedabad. This arises out of the common order dated 17-10-1986 passed by this Bench in the two appeals CD(T)(BOM)467/81 and 489/81. By this application, the Collector requires the Tribunal to refer to the Hon’ble High Court of Gujarat the following 4 points, which according to the Collector are points of law arising out of the order referred to above :
(1) Whether the interpretation of Section 115(2) of the Hon’ble Tribunal is correct in law in view of the specific definition of the term “Smuggling”;
(2) It is on record that Shri J.L. Sharma, the owner of the truck had consented to give his truck to Mr. Karim, a person of questionable antecedents. This is evident from the statements given by the driver of the truck. His involvement is, therefore established; (3) Whether Customs department has proved that the Wadi from where the said silver ingots were dug out was in possession and control of Shri Bhanabhai K. Patel. If yes, whether he is knowingly concerned with the silver, having contravened Sections 11J and 11L of Chapter IVB of the Act; and (4) Whether Customs department has proved that Shri J.L Sharma had contravened the provisions of Chapter IVB of the Customs Act, 1962. 2. Perused the reference application, the common order in the two appeals and heard Shri Mondal.
3. Under Section 131 (1) of the Customs Act the Collector is, no doubt, entitled to make an application to the Tribunal to refer points of law to the Hon’ble High Court for its opinion. But then, the points of law that could be referred to the Hon’ble High Court should be the points which should arise from the order of which notice was given to the Collector. It is not any point of law that could be referred to the High Court.
3A. Out of the 4 points, points at Sl. Nos. 2, 3 and 4 cannot be considered as points of law. By framing these questions, the Collector desires this Bench to review its earlier order. The Collector, seems to be aggrieved by the findings of this Bench in the two appeals. But unfortunately, the Collector had chosen a wrong remedy. If he is aggrieved by the findings his remedy is not by way of reference application. The scope of reference application is limited. While considering the reference application, the Tribunal does not sit in judgment over its earlier order. It has no power to review its earlier order. Even if I have to accept that the Collector had genuine grievence as to the findings of the Tribunal, his remedy lies elsewhere and not before the Tribunal and by this application. In the said circumstances, points at Sl. Nos. 2 to 4 which are not points of law, are not required to be referred. I, therefore, refuse to refer those points to the Hon’ble High Court.
4. Coming to the question at Sl. No. 1, it is no doubt, a question of law. But then, as stated earlier, it is not all questions of law that are required to be referred to the Hon’ble High Court, The question should arise from the order. It is, therefore, necessary to find out whether this point of law does arise from the order and if it does arise, whether it is required to be referred to the Hon’ble High Court.
5. The detailed facts of the appeal are set out in the common order dated 17-10-1986. A reference is also made in that order to the findings of the adjudicating authority. Before the adjudication, show cause notices were issued to the present respondent and 4 others alleging that the silver seized are prohibited goods and if they are to be exported out of India without a licence it would be a violation of Imports and Exports (Control) Order as well as Foreign Exchange Regulation Act. It was further alleged in the show cause notice that the place of seizure is a place situated within 50 kms. from the coast of India and that silver was transported within a specified area without transport voucher, without maintaining accounts and therefore all the six persons were called upon to show cause as to why silver should not be confiscated under sub-sections (c), (d), (f), (g) and (k) of Section 113 of the Customs Act and why the truck bearing No. 2304 should not be confiscated under Section 115 and why personal penalty should not be imposed on them under Section 114.
6. In the adjudication proceedings, the Collector of Central Excise and Customs ordered confiscation of the Truck bearing No. MHT 2304 but allowed redemption on payment of fine of Rs. 15,000/-. He also imposed penalties of Rs. 7.500/- and Rs. 25,000/- respectively on the two respondents herein. The respondents have challenged the penalties on them as well as confiscation of the Truck before Central Board of Excise and Customs. The Board, however, rejected the appeals and therefore, revision applications were filed before the Central Government which stood transferred to the Tribunal for being heard as appeals. This bench formulated the following points in the appeals filed by the respondents:
(1) Whether the imposition of penalties on the two appellants in the facts and circumstances of the case was unjustified; and (2) Whether the order of confiscation of Truck bearing No. MHT 2304 is illegal.
7. This Bench after consideration of the evidences, set aside the penalties as well as the confiscation of the truck. This Bench came to the conclusion that there was no attempted export of the silver. The relevant observation of this Bench in so far as the confiscability of the Truck reads. – “The truck No. MHT 2304 was admittedly used for the transport of 20 silver slabs from Panchkuva to wadi. The truck was not used from wadi to any other place. The journey between Panchkuva to wadi cannot be considereu as in the course of attempted export of silver. The silver at that stage also cannot be considered as smuggled goods because there was no attempt to export at that stage. In the said circumstances it cannot be said that the truck was used as a means of transport in the smuggling of goods or in the carriage of smuggled goods. In that view of the matter the truck also cannot be ordered to be confiscated under Section 115(2) the violation of the provisions of Section 11K would only render the goods carried in the truck liable to confiscation and not the truck itself. In its order the Board had not discussed or given finding as to the liability of the truck to confiscation.” The Bench also referred to the finding of the Collector and his reason for ordering confiscation of the Truck.
8. During the hearing Shri Mondal reiterated the contentions taken in the reference application. Shri Mondal laid stress on the definition of the expression “smuggling” appearing in Section 2(39) of the Customs Act which reads – “In relation to any goods, means any act or omission which will render such goods liable to Confiscation under Section 111 or Section 113”. Section 113 reads – “Confiscation of goods attempted to be imported, exported etc. – the following export goods shall be liable to confiscation”. Clause “1” reads -“any specified goods in relation to which any provisions of Chapter IVB or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.”
9. The goods that would be liable to confiscation for violation of provisions of Chapter IVB would be the specified goods. But then, the goods specified under Chapter IVB are silver bullion and silver ingots and not motor truck. It cannot be said that by the acts or omissions of the respondents herein there was contravention of any provision of Chapter IVB in relation to the truck. The contravention, if any, was in relation to the silver. Therefore, the definition relied on by the Collector and laid stress by Shri Mondal will be of no avail to them. In the whole of the Act or in the Rules made thereunder the expression “smuggled goods” is not defined. The goods would be considered as ‘smuggled goods’ if their import or export or their attempted import or export was without payment of duty or in violation of any restrictions or prohibition relating to the entry into or out of India.
10. Since the Collector himself did not record a clear finding that the truck was used as a means of transport in the smuggling or in the carriage of the smuggled goods and since the Board did not even record any finding as to the liability of the truck to confiscation, and since this Bench did not find attempted export of silver it had set aside the order of confiscation of the truck.
11. The above apart, as stated earlier the question of law that is required to be referred should arise from the order. During the hearing of the appeal, no contention was taken that because of the violation of Chapter IVB, the truck became liable to confiscation. On this ground also the first question is not required to be referred.
12. On consideration of all the aspects, I see no merit in the application and accordingly I reject the same.