ORDER
G.R. Sharma, Member (T)
1. By the present miscellaneous application the applicants have submitted that they had made two additional points. These two points ‘e’ and'{‘ are reproduced as under : –
“(e) Whether or not the burden of proof could be placed on the applicant which could only be done in terms of Section 123 of the Customs Act, 1962, in view of the facts that the seizure from applicant No. 2 was not by the Customs Officers but by the Police Officers.
(f) Whether or not the burden of proof be placed upon the applicant which could only be done in terms of Section 123 of the Customs Act, 1962, in view of the fact that there was no seizure from applicant.”
2. They submitted that a reference petition was filed before the Hon’ble Tribunal and the Hon’ble Tribunal had given orders on point (a) to (d) raised in the reference petition filed on 6-2-1995. It has been contended that although two points ‘e’ and ‘£’ were raised in the continuing reference application and though there was a mention of all these points in the order of the Tribunal these two points remained unanswered and therefore it has been prayed that these points may be referred to the Hon’ble High Court after drawing the statement of facts.
3. Shri A.K. Jain, learned Advocate supported by Shri Rajesh Jain, learned Advocate, appeared for the applicants and Shri Jangir Singh, learned JDR, for the respondents.
4. It was contended by the learned Advocate before us that these points of law arise out of final order A/938/94-NB, dated 10-11-1994. It was submitted that the Tribunal had held that “We also observe that watch movements are notified goods, and therefore, the responsibility of the owner/custodian of goods becomes all the more important to prove that the goods were legally acquired/possessed.” He submits that while dealing with reference application the Tribunal in its reference order No. R/37/95-NB, dated 12-9-1995 though made a mention of Section 123 but did not pass any order. He, therefore prays that the reference petition may be allowed.
5. Shri Jangir Singh, learned JDR submits that in the order not only the Tribunal has observed that the watch movements were notified items but all the factors were taken into consideration before deciding the case and that the observation that the watch movements are notified items was one of the factors which led to confiscation of the goods. It was not only the factor, he submits that on persual of the order of the Tribunal there is no mention that the applicants had raised these two points and therefore at this late stage these two points cannot be taken for reference to the High Court. He, therefore prays that the reference application may be rejected.
6. Heard the submissions of both sides. We have perused the case records and the orders of the Tribunal referred to above. We find no doubt that there is an observation of the Tribunal that watch movements are notified goods but that was not only reason on the basis of which the goods were confiscated. A number of other factors were examined. Only then the order of the confiscation was passed. We also note that there is no mention in the body of the order passed on the reference application about the two points now raised. Since these two points were not raised in the main reference application and have been raised subsequently therefore the reference application for referring these two points is not maintainable and is accordingly rejected.