ORDER
K. Gopal Hegde, Member (J)
1. This Reference Application under Section 130(1) of the Customs Act is by the appellant in appeal CD(T)(BOM)387/80. It arises out of a common order bearing No. 910-911/86 WRB, dated 25.7.1986 passed in appeal CD(T)(BOM)387/80 and 388/80.
2. By this application the applicant requires the Tribunal to refer the following questions, which according to the applicant, are questions of law and that they arise out of the order dated 25.7.1986 :
(1) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the principles of natural justice has been complied with, especially when the appellant had all along been contending that the statement of the driver has not been made available to him ?
(2) In any event, whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the appellant knew or had reason to believe the contents of the package in question ?
(3) Whether the Hon’ble Tribunal attached due weightage to the judgment of the Second Additional Chief Judicial Magistrate, Indore relied upon by the appellant in addition to other grounds in support of his contention that the appellant was not aware of the contents of the package ?
(4) Whether the Hon’ble authorities below applied proper yardsticks and valid criteria in the matter of levy of penalty and whether the Department had discharged the burden of proof regardng the appellant’s mens rea in the Case before any penalty could be imposed upon the appellant ?
3. When this application came up for consideration on 11.6.1987, the applicant as well as his Counsel were, present. But then, the learned advocate Shri R.G. Merchant sought an adjournment on the ground that some other advocate was earlier engaged and that advocate had informed the applicant that he would not be able to attend and he had received the file on the previous night and he could not peruse the complete file. The learned advocate was informed that the reference applications are time bound applications. It had already come up for consideration on 7.5.1986 and at the request of the applicant, the matter had been adjourned to 11.6.1987 and the applicant ought to have been diligent in prosecuting the application and if the applicant had thought fit to engage the present advocate on the previous night, that would not be a sufficient ground to grant the adjournment. The learned advocate did not make any submission. Shri Pal the learned departmental representative was heard.
4. Shri pal contended that the first of the questions sought to be referred does not arise from the order of the Tribunal and, therefore, the same cannot be referred to the High Court. As regards Question No. 2, Shri Pal contended that in the guise of a reference application the applicant is seeking a review of the order made on his appeal and such a review is not permissible. In so far as Question No. 3 is concerned, Shri Pal urged that it is not a question of law. Even otherwise, it is settled by the decision of the Bombay High Court in the case of Manicklal Pokhraj Jain 1986 (26) ELT 689 and as such referring the settled question of law would not arise. As regards the fourth and the last question, Shri Pal submitted that it is vague and general and in any case it relates to the appreciation of evidence and therefore not a question of law.
5. While narrating the statement of facts the applicant inter alia had stated that “it is respectfully submitted that all along the appellant has been contending that the statement of driver has not been furnished to the appellant and in the absence of an opportunity to cross-examine the witness it would not be proper to adjudicate upon the issue. It is respectfully submitted that the Tribunal committed an error in holding that the grievance has been made for the first time before the Tribunal when in fact the appellant had made a grievance even before the Central Board of Excise and Customs”. It was further submitted in the application “in any event, it is respectfully submitted that the statement of the driver could not be construed to mean that the appellant himself loaded the goods into the truck. All that has been stated was that the appellant was a partner of M/s. Bombay Indore Transport Service got loaded 26 bundles into the truck. There is nothing to show that the appellant was aware of the contents in the bundle. Since the goods were loaded by the staff of the appellant in the ordinary course of business there was no reason whatsoever to believe that the appellant was aware of the contents. It is respectfully submitted that having held that it was Narayandas who had sent the goods and having levied a penalty of Rs. 50,000/- upon the said Narayandas, the Tribunal ought to have held that levying penalty upon the appellant is not proper. It is respectfully submitted that in the light of the judgment and order dated 15.5.1986 passed by the learned Judge of the Second Additional Chief Judicial Magistrate, Indore, the Tribunal ought to have held that there was neither knowledge nor intention on the part of the appellant to transport the smuggled goods”.
6. I have carefully considered the statement contained in the reference application and the submissions made by Shri Pal.
7. Sub-section (1) of Section 130 confers a right on the Collector of Customs and the other party to appeal to make an application within 60 days of the date of service of the notice of an order under Section 129B requiring the Tribunal to draw up a statement of the case and to refer the questions of law arising from the order, the notice of which was served on the applicant. Thus the scope of Section 130(1) is clear and explicit. The questions that could be referred to be High Court should be questions of law and those questions of law should arise from the order, the notice of which was served on the applicant. It is not all questions of law or any question that is required to be referred to the High Court. While considering the reference application the Tribunal does not sit in judgment over its order in the appeal. The Tribunal is, however, required to refer a question of law which arises out of the order in the appeal unless that question is a settled question of law or an obvious question of law which does not require any reference to the High Court for its opinion.
8. Bearing in mind the above principles, let me now proceed to consider as to whether the questions set out by the applicant in the application are questions of law and whether they do arise from the order made in the appeal of the appellant.
9. In an adjudication proceeding held by the Collector of Central Excise, Nagpur, besides ordering confiscation of 3500 wrist watches, 25 alarm clocks and 20 watch straps of foreign origin collectively valued at Rs. 39,500/- and truck bearing No. MRI 4061 the Collector imposed a penalty of Rs. 50,000/- on the present applicant and one Narayandas. He also imposed a penalty of Rs. 1,000/- on the firm M/s. Bombay Indore Transport Service. The present applicant challenged the order of penalty imposed on him before the Central Board of Excise and Customs unsuccessfully. Thereafter he filed a revision application before the Central Government which statutorily stood transferred to the Tribunal for being heard as an appeal.
10. During the hearing of the appeal several contentions were urged on behalf of the present applicant and the contentions urged are summarised in para 5 of the order of the Tribunal. One of the contentions taken was that the Collector fixed the personal hearing on 30.4.1975 and he could not complete the hearing on that day as one of the respondents wanted to give further evidence. Therefore, the Collector adjourned the hearing by 10 days. Then he did not fix any date nor did he give any personal hearing. Thereafter he proceeded to pass the order. It was urged that on 30.4.1975 the appellant could not appear and he had sought an adjournment by a telegram of the same date but had not received any reply. Thus the appellant did not have adequate opportunity to make his submission and therefore the Collector’s order was illegal and unjust and there had been a violation of the principles of natural justice. The Tribunal considered this contention in para 8 of its order. The Tribunal had observed that the adjudicating authority had fixed the date 30.4.1975 for the personal hearing a notice of which was duly served on the appellant (the present applicant). The adjournment was sought by a telegram dated 30.4.1975. There was nothing on record to show that this telegram was received by the adjudicating authority. Nothing prevented the appellant from seeking adjournment sufficiently early. The further observation of the Tribunal was “the next contention was that the collector had adjourned the hearing to a subsequent date at the request of some other parties but the said date had not been intimated to the appellant. Even according to the appellant the adjourned hearing was to hear other parties who had appeared before him. In the circumstances, if the adjudicating authority had not intimated the adjourned date of hearing, it cannot be contended that the appellant was deprived of a fair opportunity to make his representation. It would have been open to the appellant to go to the office of the Collector and to find out as to what date the hearing was adjourned or what became of the telegram stated to have been sent by him. That apart against the order of the Collector (Appeals) appeal was filed to the Board. The appellant is also given a hearing in this appeal. In the circumstances the contention of Shri Khan that there had been a denial of the principles of natural justice cannot be accepted”.
11. The other grievance made in the appeal was that the statement of the driver Chandrasekhar was not supplied to him and he did not get an opportunity to cross-examine Shri Chandrasekhar. This contention was considered by the Tribunal and the finding of the Tribunal reads “this contention appears to have been put forward for the first time before me. There is nothing on record to show that the statement of Chandrasekhar was not made available to the appellant Faruq. There is also nothing on record to show that any request was made on behalf of the appellant to cross-examine Shri Chandrasekhar. In the said circumstances this contention cannot be accepted”.
12. In the reference application the applicant did not contend that the above observation of the Tribunal is factually incorrect. It was not stated that before the Board such a contention was taken and the Board did not consider that contention. The present applicant was issued with a show cause notice. If a copy of the statement of the driver had not been furnished the appellant would have requested for a copy before he sent his reply. In his reply to the show cause notice, the appellant could have even contended that he requires the driver for cross-examination. In the present reference application the applicant did not aver that in his reply to the show cause notice he made any grievance as to the non-supply of the statement of the driver Chandrasekhar or he required the driver Chandrasekhar for cross-examination. In the circumstances if the Tribunal had observed that that contention was made before it for the first time and there was nothing on record to show that the statement of Chandrasekhar was not made available to the appellant and further there was nothing on record to show that any request was made on behalf of the appellant to cross-examine Shri Chandrasekhar, it cannot be contended that those observations are factually incorrect.
13. The finding regarding compliance of the principles of natural justice was based on the appreciation of facts. The appreciation of facts cannot be characterised as perverse. It is also not the contention of the applicant that the Tribunal while appreciating the facts took into consideration the non-existent evidence or relied on irrelevant evidence. In the circumstances no question of law would arise and therefore there is no scope to refer the first question set out by the applicant in his application.
14. As has been rightly contended by Shri Pal, the applicant in the guide of a reference application is seeking to review the order made by the Tribunal in the appeal. Having regard to the scope of the reference application, Question No. 2 cannot be considered as a question of law. The finding of the Tribunal with regard to his knowledge is based on the appreciation of the circumstances appearing in the case as well as the oral evidence in the form of statements of witnesses. It was not contended that the inference drawn by the Tribunal from the established facts can never be drawn by a prudent reasonable person. It was also not contended that the appreciation was perverse. In the circumstances there is no scope to refer Question No. 2.
15. Question No. 3 is not specific. It is too general in nature. It requires the review of the entire order made in the appeal. Therefore, such a question cannot be referred to the High Court. It may, however, be stated that during the hearing of the appeal it was not contended that there was a judgment of the Second Additional Chief Judicial Magistrate, Indore in favour of the appellant. If such a contention had not been taken there was no opportunity for the Tribunal to consider that contention and therefore, it follows that the Question No. 3 is not a question arising out of the order passed by the Tribunal and as such cannot be referred to the High Court. However, it is settled law that the adjudicating authority and the criminal court are two independent authorities. The finding of one authority is not binding on the other authority. This aspect is now covered by two Bench decisions of the Bombay High Court and one of them is reported in 1986 (26) ELT 689, Manicklal ‘Pokhraj Jain.
16. As regards-Question No. 4 the grievance is not against the order of the Tribunal but against the other authorities probably the adjudicating authority and the Board and therefore it cannot be said that this question arises from the order of the Tribunal.
17. During the hearing of the appeal on behalf of the appellant it was contended that conscious knowledge of the package is necessary to bring home the guilt of the appellant. This aspect was considered by the Tribunal in paras 9, 10 and 11 and the finding is found at para 12 and the finding was that the present applicant knew or had reason to believe the contents of the package in question and therefore penalty could be legally levied on him. Here again the finding is based on the appreciation of various circumstances and oral evidence in the form of statements. It is a finding of fact and therefore no question of law arises requiring reference to the High Court.
18. In the result and for the reasons stated above, this reference application is rejected.