ORDER
1. The vessel Vishwa Mamta, owned by the Applicants carrying general cargo from Japanese Ports arrived at the outer anchorage of the Madras Harbour on 11.3.1983. During the course of rummage of the vessel, the officers of the Customs Department recovered articles of foreign origin from various parts of the vessel as detailed in the order in original (Annexure B). After due process of law, the Additional Collector of Customs, Madras confiscated the goods valued Rs. 80,890/- under Section 111(d) and (f) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947 and the vessel m.v. Vishwa Mamta under Section 115(2) of the Customs Act with an option to redeem the vessel on payment of a fine of Rs. 20,000/- in lieu of confiscation under Section 125 ibid.
2. In the appeal filed on behalf of the applicants it was submitted that the owner of the vessel and the Master of the vessel, have repeatedly warned the members of the crew against smuggling activities. Thus, both the owners and the Master took all possible steps to prevent and smuggling activit aboard the ship. It is also argued that the rules contemplated in Section 115(2) of the Act have not been promulgated and therefore there cannot be either confiscation of the vessel under this section or any penalty on the Master of the vessel.
3. On behalf of the respondent, the learned Departmental Representative submitted that this Bench had earlier dealt with the interpretation of Section 115(2) when it passed orders in appeal No. CD(MAS) 616/83 and 1/84 in the case of M/s Great Eastern Shipping Co. Ltd., Bombay and Shri P.K. Chib, Master of the vessel v. Collector of Customs, Madras. He also submitted that the articles recovered in 60 packages were of considerable bulk and were secreted in various parts of the vessel. Concealment of contraband goods of such a scale could not have taken place if reasonable precautions were in fact taken by the Master.
4. Relying on its own earlier orders CD(MAS) A. No. 616/83 and 1/84 (Annexure C & D respectively) and for reasons detailed in the impugned order No. CD/MAS/188/84/CD/MAS/415/83 dated 3.7.84, the Tribunal dismissed the appeal of the applicants (Annexure A).
5. Under Section 130(1) of the Customs Act, 1962 the applicants have sought to refer to the Hon’ble High Court of Madras certain questions, said to be of law and arising from the order of the Tribunal (Annexure E).
6. Taking all the questions excess (c) the Tribunal’s earlier order No. CE(MAS) A. No. 616/83 and 1/84 relied on in the subject order deals with the matter raised in these four questions. Paragraph 8 to 10 of the order of the Bench of this Tribunal, to which one of us was a party, deal with the identical questions raised” by the applicants in those appeals. It will be seen that these are questions of fact only. No question of law therefore survives for reference on these five points.
7. Taking up question (c), though this has been dealt with by the above mentioned earlier order of the Tribunal, it is felt that we may still refer this question to the Hon’ble Madras High Court under Section 130(1) of the Customs Act, 1962, in the following form:
“Whether in the facts and circumstances of this case, where the adjudicating authority is satisfied that the contraband goods recovered from the ship are of such a nature and quantity as could not be without knowledge of its Master, the non-framing of rules contemplated under Section 115(2) of the Customs Act could be pleaded as a valid defence against action against the vessel under that Section”.