ORDER
K. Gopal Hegde, Member (J)
1. This Reference application presumably under Sec. 130(1) of the Customs Act was by the appellant in Appeal No. CD(T)(Bom.) 17/1976. By this application the applicant requires the Tribunal to draw a statement of the case and to refer the questions set out in paragraph 8 of the application to the Hon’ble High Court of Bombay as required by Sub-section 1 of the Sec. 130 of the Customs Act. According to the applicant, 11 questions set out in paragraph 8 of the application are questions of law and they arise out of order No. 985/86 WRB dt. 15.7.1986 in the appeal CD(T)(Bom.) 17/86.
2. During the hearing of the Reference application Shri Parekh, however, conceded that all the questions set out in paragraph 8 of the application would not arise from the order and are not required to be referred. He also conceded that they are not properly framed. He, therefore, submitted the following 5 questions for being referred to the High Court :-
(1) Whether the Customs authorities or the Board or the Tribunal has jurisdiction to decide upon the question whether the Applicant who was the only claimant of the goods was the real owner of the goods even before deciding upon the question whether the order of confiscation was justified under Sec. 113(c) of the Customs Act, 1962, or any other provisions of the Customs Act, 1962 even for the purposes of ultimately deciding to whom the goods should be returned if the same are not liable for confiscation.
(2) Whether the Customs Authorities or the Board or the Tribunal had jurisdiction to hold that the Applicant, though the only claimant, was not the real owner of the goods and hence not the party aggrieved to challenge the Order of confiscation of the goods and/or its retention by the Department. (3) What is the meaning of the phrase "coast of India" under Section 113(c) of the Customs Act, 1962 and whether Kamathipura in Bombay can be said to be the coast of India and the goods stored thereat can be said to be stored thereat for the purpose of being exported outside India through a place other than an authorised Customs Port/Airport. (4) Whether after the issue of a show cause notice wherein the liability of the confiscation was alleged under Section 113(c) of the Customs Act, 1962 can the Tribunal pass an order holding that the goods would become liable to confiscation under Sec. 113(c) if not under Sec. 113(c). (5) Whether it was not incumbent upon the Customs authorities or Board or Tribunal to decide upon the issue whether the goods were liable to confiscation dehors the issue of ownership and if not liable to confiscation, return the same to H. Lokhandwalla from whom it was seized or the Applicant, being the only claimant of the goods.
3. During the hearing of this application Shri Parekh contended that the Customs authorities, the Board and the Tribunal has no jurisdiction to decide upon the ownership of the seized goods. But all the authorities have proceeded to “determine” the “ownership of the goods” and therefore committed a legal error. It was further contended by Shri Parekh that when the applicant was the only claimant the Customs authorities, the Board and the Tribunal had no jurisdiction to hold that the appellant was not an aggrieved party to challenge the order of confiscation. The next submission of Shri Parekh was that the goods were seized at Kamathipura in Bombay city which cannot be considered as a “coast of India”. The goods stored at that place cannot be considered as for the purpose of being exported outside India and as such the Tribunal’s order involves a question as to the meaning to be assigned to the phrase “coast of India”. Further submission of Shri Parekh was that the allegation in the show cause notice was that the goods becomes liable to confiscation under Sec. 113(c) but then the Tribunal recorded a finding that the goods could be confiscated under Sec. 113(a) if not under Sec. 113(c). The Tribunal, Shri Parekh, urged has no power or jurisdiction to hold that the goods becomes liable for confiscation under Sec. 113(a) when there was no specific allegation in the show cause notice. Lastly, Shri Parekh urged, in order to examine the liability of the goods to confiscation the question of ownership need not be gone into. If the goods were not liable to confiscation then the same has to be returned to Shri Lokhandwalla from whom it was seized or to the applicant being the only claimant of the goods. Shri Parekh, therefore, prayed that the 5 questions set out above may be referred to the Hon’ble High Court after drawing up a statement of the case.
4. Shri Pattekar, the Learned Departmental Representative however, urged that none of the questions is a question of law and in any case they do not arise from the order of the Tribunal in the appeal. The Tribunal’s order was based on the appreciation of the evidence and therefore, the application may be rejected.
5. We have carefully considered the submissions made by both the sides. In order to appreciate the contentions of Shri Parekh as well as Shri Pattekar it would be necessary to set out the facts as found by the Tribunal in Appeal No. CD(T) (Bom.)17/86 and the questions that involved in that appeal and the findings of the Tribunal. It may also be necessary to briefly refer to the history of the litigation.
6. According to the Department’s case on the night of 17/18th November, 1966 pursuant to a secret information that silver ingots were secreted near shop No. 5 at the junction of Bapty Road and Shankar Puppala Road, Kamathipura, Bombay for being smuggled out of India the police officers and Prohibition Intelligence Bureau Bombay maintained a vigil at the suspected place with a view to intercept the persons coming to take away the concealed silver ingots which were hidden underneath the heap of iron scrap. Since no one came forward to claim the silver ingots the police officers seized the silver ingots under a panchnama and subsequently handed over the seized silver ingots to the Customs & Central Excise officers of the Marine & Preventive Division, Bombay on 19.11.1966 for taking action under the Customs law. A month thereafter, the appellant, Mulchand P. Jain by his letter dt. 19.12.1966 claimed the ownership of the seized silver ingots and requested for release of the ingots. On 4.1.1967 he produced certain bills in support of his claim of ownership of 55 silver ingots out of 89 seized by the police. In his statement, he inter alia stated that he bought 55 silver ingots in the ordinary course of business and had stored them in the godown of Shri Hasanali Hasmulla Lokhandwalla. He, however, left Bombay on pilgrimage on 17.11.1966 and returned to Bombay only on 19.12.1966.
7. The Collector of Central Excise & Customs, Bombay who had held the adjudication recorded the findings that Mulchand was not the owner of the silver ingots and he has been made a scapegoat by the real owner. He, further recorded the findings that all the 89 ingots were brought to Kamathipura which is near to the sea coast of India and were attempted to smuggle out of India in contravention of provisions of Sec. 113(c) of the Customs Act. He, therefore, ordered confiscation of all the 89 silver ingots. Shri Mulchand carried the matter in appeal before the Central Board of Excise & Customs Unsuccessfully. Thereafter, he further carried the matter in revision to the Government of India and the Revision application was rejected. Latter he filed a Writ Petition No. 1228/1978 before the High Court of judicature at Bombay. During the pendency of the Writ Petition a consent memo was filed. The writ petition was disposed of in terms of the consent memo.
8. After the disposal of the writ petition the Revision application which was required to be heard afresh by the Government of India by reason of the amendment of the Customs Act, 1962 by Act 2 of 1980, the proceedings pending before the Government of India statutorily stood transferred to the Tribunal for being heard as an appeal.
9. During the pendency of the appeal on behalf of the appellant it was contended that they should be permitted to produce documents and had evidence. In view of the consent memo and in terms of the High Court Order the prayer was allowed. Addl. Collector of Customs (P) was directed to record evidence and accordingly the Addl. Collector recorded the evidence and forwarded the evidence so recorded to the Tribunal. Thereafter, the arguments were heard.
10. The Bench which heard the appeal formulated the following questions for consideration.
(1) whether the Collector and the Board were unjustified in holding that 55 silver ingots out of 89 silver ingots seized did not belong to the appellant, (2) whether the Collector and the Board were not justified in holding that the seized silver ingots were liable to confiscation. 11. After referring to the findings of the Board and after consideration of the contentions urged before the Tribunal on point No. 1 this Bench passed the following order:-
“At the outset it is necessary to make it clear that the adjudication proceedings is a summary proceedings. Strictly speaking, the adjudicating authority has no jurisdiction to determine the title to the goods. The findings of the adjudicating authority as to the title or the ownership of the goods would hot be conclusive or binding on the real owner. The proper authority Jo determine the title to the property is the Civil Court. But then, if any person lays claim to the seized goods, the adjudicating authority gets jurisdiction to decide whether the claim is real or fanciful. This is because in the event of the adjudicating authority holding that the goods seized are not liable to confiscation, the same shall have to be returned to its real owner or to the person from whom it was seized. The position, however, gets altered if the findings of the adjudicating authority is against the claimant. Such a claimant cannot question the legality of the order of confiscation of the goods unless and until he establishes his right to the seized goods.
An appeal against the order of an adjudicating authority is maintainable at the instance of a person aggrieved. A person becomes aggrieved in case his rights are affected by the order of the adjudicating authority. The appellant before us claims ownership of 55 ingots out of 89 ingots seized in the case. As has been seen earlier, the adjudicating authority as well as the Board rejected the appellant’s con-tention that he was the owner or had any title to 55 ingots out of 89 ingots of silver. We have already referred to the various contentions urged on either side. The limited question for our consideration is whether the finding recorded by the adjudicating authority and confirmed by the Board regarding appellant’s claim is erroneous or not justified in the facts and circumstances of the case”.
12. From the above observations of the Tribunal it is clear that the Tribunal, in clear and explicit terms, held that the adjudicating authorities had no jurisdiction to determine the title to the goods and any findings as to the title or the ownership of the goods would not be binding on the real owner. The proper authority to determine the title of the property is the Civil Court.
13. Having regard to the above findings the contentions of Shri Parekh that the Tribunal had gone into the question of ownership of the seized goods is factually incorrect. Neither the adjudicating authority nor the Board, nor the Tribunal recorded a finding as to the ownership of the seized silver ingots. What had been considered was as to the validity of the claim made by the applicant. The appellant’s claim was specific, viz. that out of 89 ingots seized by the police 55 were acquired by him. In other words, he claimed ownership in respect of 55 ingots. To substantiate his claim he produced documentary evidence. In the show cause notice issued to the appellant it was clearly stated that there was reason to believe that the bills produced by him are not genuine and the appellant was not the real owner of the goods.
14. This show cause notice which was issued to the appellant came back with an endorsement “unclaimed, returned to the sender”. Thereafter, the show cause notice was served on the appellant personally. Even then, he did not choose to send any reply.
15. It is because the appellant staked his claim for 55 silver ingots out of 89 ingots seized by the police, the adjudicating authority rightly proceeded to consider the claim, so also the Board and the Tribunal. In its order the Board observed that “the Collector of Central Excise did not, in fact, adjudicate the case with a view of determining the ownership of the silver ingots. Since the appellant claimed himself to be owner of the 55 ingots it was for him to establish his claim and the Collector had jurisdiction to decide whether the claim of ownership advanced by the appellant was sustainable or not”.
16. The Tribunal in its order observed “limited question for our consideration is whether the findings recorded by the adjudicating authority and confirmed by the Board regarding the appellant’s claim is erroneous or not justified in the facts and circumstances of the case”. Thus, the question of ownership gone into by all the authorities was only with a view to consider the validity of the claim made by the appellant and not with a view to ascertain the ownership or the real title of the seized goods.
17. The Tribunal, in great detail considered the validity of the claim made by the appellant. After recording several reasons the Tribunal recorded its findings as under :-
“On consideration of all the evidences and the circumstances of the case, we do not have any reason to hold that the rejection of the appellant’s claim by the Collector and the Board was either wrong or unjustified. We, therefore, see no reason to interfere with that part of the order”.
18. Having regard to the findings of the Board and the Tribunal the contentions of Shri Parekh that the Board and the Tribunal had proceeded to consider as to who was the real owner of the goods and the Board and the Tribunal had no jurisdiction to go into that question is, in our opinion, totally misconceived and to repeat all the authorities had only examined the claim put forward by the appellant which they are required to examine and as such the first question set out above would not arise from the order of the Tribunal and therefore, is not required to be referred to the Hon’ble High Court.
19. The Tribunal’s finding as to the point No. 2 is found in paragraph 31 of its order. It reads “having regard to our finding on point No. 1, it would not be necessary for us to go into the question as to the validity of the order of confiscation of the silver ingots. The legality of the order of confiscation can be gone into only at the instance of a person who had substantiated his claim to the seized goods. Since the appellant had not substantiated his claim it would not be necessary for us to consider the validity or otherwise of the order of confiscation passed by the Collector and confirmed by the Board. The Collector and the Board, particularly, the Board after taking into consideration the various aspects have come to the conclusion that there was an attempt to export silver. It was no doubt true that the silver was seized at Kamathipura. The chain of circumstances established in this case clearly establishes that if there had been no intervention by the police officers, the silver would have been exported out of India. May be as a first step, the silver was kept hidden at Kamathipura. This act would fall under clause (a) of Sec. 113, if not under clause (c) and therefore, we see no reason to interfere with that part of the order also. It is true that in the show cause notice it was not alleged that there was violation of clause (a) of Sec. 113 but then the legality of the show cause notice or the denial of the principles of natural justice also cannot be gone into at the instance of a person who has no claim or whose claim is unfounded to the seized goods”.
20. The categorical finding of the Tribunal was that having regard to the rejection of the claim put forward by the appellant it would not be necessary to go into the question of legality of the order of confiscation of silver ingots. The Tribunal was emphatic it held that the legality of the order of confiscation can be gone into only at the instance of a person who had substantiated his claim to the seized goods and not at the instance of the person who had failed to substantiate his claim. Since the appellant had not substantiated his claim it would not be necessary to consider the validity or otherwise of the order of confiscation passed by the Collector and confirmed by the Board.
21. Though question No. 2 can be said to arise from the order of the Tribunal the position of law is so obvious, we, therefore, do not consider it necessary to refer to the Hon’ble High Court for its opinion.
22. Question No. 3 does not arise from the order of the Tribunal. The Tribunal, nowhere recorded a finding that Kamathipura is a coast of India. The finding on the other hand was, that the chain of circumstances established in the case clearly shows that if there had been no intervention by the police officer the silver ingots would have been exported outside of India. Since the Tribunal did not record any finding as to the meaning of the phrase “coast of India” the question No. 3 would not arise from the Tribunal’s order and if it does not arise out of the Tribunal’s order, it is not required to refer it to the Hon’ble High Court.
23. Though question No. 4 can be said to arise from the order of the Tribunal, having regard to the categorical findings of the Tribunal on issue No. 1 and having regard to the scheme of the Customs Act, we are of the view that this question also need not be referred to the High Court as no purpose would be served by referring questions of law which have become academical.
24. The Tribunal’s finding that the appellant had failed to establish his claim in respect of the 55 silver ingots, is based on appreciation of facts and it is purely a question of fact. Therefore, such a finding cannot be referred to the High Court under Sec. 130(1) of the Customs Act. If that question cannot be referred, no useful purpose would be served by referring the question Nos. 2 to 5 to the Hon’ble High Court even if they arise from the order in the appeal.
25. As per Sec. 130 (D) of the Customs Act the Tribunal has to pass the final order in conformity with the judgment of the High Court. When the High Court cannot go into the question of facts or the issues of facts in its reference jurisdiction the finding of the Tribunal that the appellant had failed to establish his claim would not get disturbed. If that finding does not get disturbed then the other findings on other issues even if they are considered as questions of law would not alter the result of the appeal. It is because of this reason the Tribunal Observed in its order that since the appellant did not substantiate his claim it would not be necessary for the Tribunal to consider the validity or otherwise of the order of confiscation passed by the Collector and confirmed by the Board. The question at serial No. 5 even otherwise, does not arise from the Tribunal’s order. No such contention had been urged during the hearing of the appeal.
In the result and for the reasons stated in the preceding paragraphs, we reject this Reference Application.