1.The following question arising from Tribunal's Order No. CD (MAS) 584/83, dated 16-6-1984 said to be of law have been raised for reference to the High Court of Judicature at Madras in terms of Section 130(1) of the Customs Act, 1962 : (i) Whether in the facts and circumstances of the case the decision of the Tribunal that the stapling machine imported by the appellant was not an industrial stapling machine is justified; (ii) Whether on the facts and circumstances of the case the Tribunal was correct in holding that the stapling capacity of the stapler, namelys HD-10 type disentitled it to be called as industrial stapling machine; (iii) Whether in the facts and circumstances of the case the Tribunal was right in holding that the capability of HD-10 stapler to be used in the industry more particularly in the petitioner's own industry of Garment export was not the main criteria; (iv) Whether in the facts and circumstances of the case the applicant's import of Industrial stapling machines HD-10 type was in contravention of the relevant policy.
2 At the time of hearing of the Reference Application, Shri Rama-subramaniam, Advocate, for the applicant contended that the basic point for reference would be whether the finding of the Tribunal that the stapler HD-10 type imported by the Reference Applicant was not industrial stapling machine is justified In this connection he also referred to the observations of the Supreme Court in the case of G.Venkataswamy Naidu and Co .v. Commissioner of Income-tax AIR 1959 S C.359 an the observations of the Bench of the Madras High Court in the case of Bank of India Ltd. v. Sarathy Bros, and Anr.-AIR 1970 Madras 37. He urged that in the light of these two cases, an inference from an established fact could be a question of law for the purposes of reference or an appeal as one involving a question of law.
3. In our order dated 16-6-1984, based on the nature of the goods imported as described in the catalogue, she description of certain other units manufactured by the same manufacturer, etc., we held that the Article imported is not au industrial stapling machine, it is common ground that according to I.T.C Policy an industrial stapling m:.machine can be allowed importation, but not other types. The finding that tin,; Article imported is other than an industrial stapling machine is purely a factual one. No question of law would be involved, Interpretation of the I.T.C. Policy as such does not arise as It is common ground that only industrial stapling machine could be imported and not others. Hence, no question of law as such arises for reference to the High Court.
4. In the case of G. Venkataswamy Naidu and Co, v. Commissioner of Income-tax (AIR 1959 S.C. 359) it is stated that the following matters can be questions of law under Section 66 (1) : (2) the legal effect of the facts found where the point for determination is a mixed questions of law and fact; and (3) a finding of fact; unsupported by evidence or unreasonable and perverse in nature." As already set out earlier, the issue involved in the present instance is purely a question of fact; the wording of I.T.C. Policy not being in question to examine if that would involve a question of law.
5. In the case considered by the Madras High Court the question for decision was whether disputed portion of premises formed part of tenancy granted to a tenant, subject to right of. other tenants or occupants of the premises. In para 4 of the Judgment, Their Lordships have stated, "We are inclined to think that the question is not purely a factual one, but is one relating to the propriety of the legal conclusion that could be arrived at on the basis of proved facts. That is a question of law which is open to review in second appeal." No legal conclusion arising from facts calls for determination in the present appeal. The nature of the Max HD-10 stapler was the subject-matter of decision of the Tribunal and its consequences do not admit of a controversy.
6. In the above view no question of law survives for reference to the High Court. The Reference Application is accordingly rejected.