ORDER
S.C. Jain, Member (J)
1. his Reference Application has been filed against Order No. A-426/84-NRB, dated 9-11-1984 passed by North Regional Bench of this Tribunal in Appeal No. ED (Del) (T) 619/82-NRB, titled Gunwant Rai Harivallabh Jani, Kamptee Line, Rajnandgaon v. Collector of Central Excise, Indore.
2. The applicants were charged for manufacturing Bidis outside their factory and selling them under their brand name “Ranvir Chhap Bidi” without payment of excise duty. After appreciation of evidence on record and hearing the parties counsel, this Bench of the Tribunal held as under :
“…The evidence produced by the department is more than sufficient to connect the appellants with manufacturing of bidis outside their factory and to clear the same under their brand name “Ranvir Chhap Bidi” without payment of excise duty and therefore, the department has rightly confiscated those bidis and imposed the penalty of Rs. 2,000/ upon the appellants for violation of the Rules 9(2), 52, 52-A and 226 of the Central Excise Rules, 1944. Order of confiscation of those bidis which were found in the possession of Shri Gopi and Sh. Bhola Ram is also in order and the redemption fine of Rs. 200/ and Rs. 300/ respectively is also not towards higher side. The demand of the excise duty on the bidis so removed clandestinely without payment of duty is also in order.”
3. Not satisfied with the said order passed by this Bench of the Tribunal, the applicants alleged in this reference application that the following questions of law arise out of the order which should be referred to the High Court of Madhya Pradesh for its opinion :-
(i) Is the order of the Tribunal vitiated because of denial of principles of natural justice ?
(ii) Was there any admissible or acceptable material on record to prove that Shri Gopi and Shri Bholaram were benamidars of the appellant or that the appellant was getting the bidis manufactured through them and clearing it without payment of duty ?
(iii) Was there any material on record to prove that 2742 Kg. of tobacco was utilized by the appellant for manufacturing of 1,01,56,000 bidis and thereby the appellants evaded the duty of Rs. 37,322/- ?
4. We have heard Shri P.D. Thakar, Counsel for the applicants and Shri Iyer, Joint Chief Departmental Representative and gone through the record.
5. Hon’ble Supreme Court in the case of Meenakshi Mills Ltd. v. C.I.T. (31 ITR 28) has laid down the following principles regarding making reference to the Hon’ble Supreme Court or the High Courts.
1. When the point for determination is a pure question of law such as construction of a statute or document of title, the decision of the Tribunal is open to reference to the Court.
2. When the point for determination is a mixed question of law and fact, (a) the finding of the Tribunal on the facts formed would be final, but, (b) its decision as to the legal effect of those findings would be a question of law which can be reviewed by the Court.
3. A finding of fact is open to attack as erroneous in law when there is no evidence to support it or if it is perverse.
4. When the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of facts.
There must be a question of law arising out of the order of the Tribunal before a reference can be made. The questions which the learned Counsel for the applicants wants to be referred to the High Court are all based on facts and no point of law is involved therein. In fact, a perusal of the impugned order shows that it is based on appreciation of the evidence available on record and no legal point arises out of this order.
6. The only argument advanced by Shri Thakar, the learned Counsel for the applicants is that the evidence upon which the Tribunal has relied upon was recorded during the investigation proceedings and that no opportunity was granted by the department to crossexamine those witnesses though the appellants had specifically so requested by writing letters. Denial of opportunity to crossexamine those witnesses has resulted in miscarriage of justice and as such it is a point of law which has arisen out of this order.
7. Shri Thakar, however, agreed that during the course of arguments of the main appeal this question of law was neither raised before the Tribunal nor it was considered by the Tribunal in its judgment. It has been laid down by the Hon’ble Supreme Court in the case of C.I.T. v. Scindia Steam Navigation (1961-ASC-1633) that when a of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it.
8. As no question of law arises out of the order passed by the Tribunal, so this reference application is not maintainable and the same is hereby rejected.
