ORDER
S.L. Peeran, Member (J)
1. By these three Reference applications filed by three individuals arise from a common order passed by the Tribunal in Order Nos. 1058 to 1062/98, dated 2-6-1998 upholding the Order-in-Original No. 21/94, dated 30-12-1994 passed by the Commissioner of Customs, Bangalore ordering confiscation of 50 cartons containing building bricks covered with newspaper and coir having markings No. C-l to C-50 which have no commercial value under Section 115 (D) of Customs Act, 1964. He imposed penalties on the-above appellants as follows :-
(a) Pushparaj Shetty - 1 lakh (b) S.D. Kini. - Rs. 1 lakh (c) K.R. Shenoy - Rs. 1 lakh (d) P.M. Nayak - Rs. 3 lakhs. P.M. Nayak's reference application has not been listed today.
2. The Tribunal after a detailed consideration of the case, upheld the allegation brought forth by the department and also the imposition of penalties on the above named appellants. The basic charges made out against these appellants was that an export licence had been issued to M/s. Seth International, Bombay to export Polyester Texturised Yarn. Instead of exporting this permitted item, they had made an attempt to export building bricks wrapped in paper and had filed necessary shipping bills declaring the packed carton to be 80 Denier Polyester texturised yarn. M/S. Seth International did not contest and admitted all the allegations about their attempt to export mere bricks instead of 80 Denier polyester texturised yarn. Other three persons’ role was to get all the building bricks of the size of the cartons and about the role played by them in packing the same and attempting to help Seth International’s export as 80 Denier polyester texturised yarn. The statements of all the persons were recorded under Section 108 of the Customs Act by which they implicated themselves and explained in detail about the manner in which they had indulged in this work by accepting consideration from M/s. Seth International. S.D. Kini was a partner of KINI AUTO and also caretaker of M/s. Kini International, Mangalore who had admitted that P.M. Nayak had during Nov., 1993 asked him and K.R. Shenoy is a partner who undertook payments and handed over the documents to Pushparaj Shetty of 4 Wings international for export of goods to Dubai by M/s. Seth international for which he agreed; he had received all the documents through K.R. Shenoy and they were sent to Pusphparaj Shetty for processing and that an amount of Rs. 64000/- in favour of one B. Venkataraman was handed over to Pushparaj Shetty on account of freight charges etc. Mr. Pushparaj Shetty also in his statement admitted about the facts. The appellants were all heard in great detail and after due consideration of their pleas, a detailed order was passed by the Tribunal upholding the charges and imposition of penalties.
3. By these reference applications, appellants seek reference on following questions as noted in para 8 :-
(a) Whether the Tribunal was right at law to hold that the statement was voluntary, when the same was retracted and the rectraction was upheld in S.D. Kini’s case in the High Court of Karnataka. S.D. Kini is also a co-appellant in this case.
(b) Whether Tribunal was correct in relying only on statement of the co-accused to levy penalty on the applicant when no incriminating documents were recovered from the possession of the applicant to support the statement of the co-accused and there was total lack of corroboration.
(c) Whether the Tribunal was right in not considering the fact that the Department did not furnish the additional statements given by the co-accused as the same was demanded by the appellant, and there was violation of principles of natural justice.
(d) Whether the Tribunal was right to uphold the ex-parte order passed by the Commissioner though adjournment was sought for by the appellants for want of certain documents required by them when the said adjudication was pending and consequently there was violation of principles of natural justice.
(e) Whether Tribunal was right to uphold the allegation passed by the Commissioner which was based only on the statements of the co-accused, which was not corroborated.
(f) Whether the Tribunal was right to consider the order of the Commissioner when the appellant was abroad and was inculcated on the statement of the co-accused.
(g) The applicant therefore, requires under Sub-section (1) of Section 130 of the Customs Act, that a statement of the case be drawn up and the questions of law referred in paragraph (8) above be referred to the High Court.
(h) The documents or copies thereof as specified below (the translation in English of the documents, where necessary is annexed) be forwarded to the High Court with the Statement of the case.
4. We have heard ld. Advocate Shri V. Lakshminarayana and Shri S. Sankaravadivelu, ld. DR.
5. Ld. Advocate submits that the case was argued by two other Advocates. He submits that in terms of the Tribunal’s order the points raised pertaining to denial of principles of natural justice does not appear to have been taken up by the Counsels. However, he was instructed by the appellants to state that the non supply of documents was a crucial point which was required to have been considered. He also submits that the appellants had retracated the statements and on the basis of such retracted statements, the Advisory Board had discharged them under COFEPOSA. Hence these points were required to have been considered.
6. Ld. DR points out that the points raised by the appellants were not question of law but only question of facts which are not referrable to High Court. He further submits that the admissions and confessions were clear on record and about the role played by each one of them. The Tribunal had discussed all the evidences and hence there is no violation of principles of natural justice. He submits that the questions raised are not questions of law and it does not require any reference for High Court as held by the Tribunal in the case of C.C. v. Paivan Enterprises as reported in 1998 (97) E.L.T. 301.
7. On a careful consideration, we notice that the gravity of the charges made out against the appellants was brought home by the department in terms of the admissions made by the appellants themselves. The Commissioner had considered at length about the evidences and in view of the attempt to export mere building bricks instead of 80 Denier polyester texturised yarn, the Commissioner had confirmed penalties. The appellants had been extensively heard through their Consultant Shri V.P. Namasivayam and Shri G. Sampath. All their arguments had been summarised in the order and their case has been thoroughly examined by the Tribunal and in view of the admissions and role played by each person and due to corroboration of evidence, the charges brought out were upheld. The Tribunal also held that the penalties imposed were justifiable. All these was in terms of the evidence based on facts. As noted by the Tribunal in the case of C.C. v. Pawan Enterprises, re-appreciation of evidence is not permissible in a reference application. Further, we notice that the appellants are making out fresh grievances in the form of questions raised which does not fall within the ambit of a reference application. The appellants had not chosen to raise any other grounds than those incorporated in the order itself. Therefore, we are of the considered opinion that the questions raised are questions of facts and not law for reference to High Court. Hence, these reference applications are rejected.
