1. The applicants herein, namely M/s. Birla Jute Manufacturing Company Limited, have moved this application under Section 130 of the Customs Act, 1962 (hereinafter referred to as the Act), seeking reference to the High Court, of some questions described as that of law, after the dismissal of their appeal by the Tribunal Order dated 18-8-1983 passed in Appeal No. 446/80-D, being Order No. 50/83-D.2. On this petition coming up for hearing on 27-2-1984, Dr. Gauri Shankar, Advocate, appeared with Miss Rukmini Nair, Advocate, whereas the respondent was represented by Shri K. Chandramouli, SDR.3. In view of the fact that the subject matter of dispute in the case related to questions of rate of duty as applicable on the date of import effected by the applicants, it was pointed out to Dr. Gauri Shankar, at the outset, that the Bench considered that an application for reference to High Court does not lie in terms of Section 130 of the Act inasmuch as there was a specific exclusion in respect to orders having a relation to the rate of duty of customs or to the value of goods for purposes of assessment. It was further pointed out to the learned Counsel that the Tribunal in a series of decisions, has already taken a view regarding non-maintainabiiity of reference application in such matters, and it was put to him whether he would still like to press the application. Dr. Gauri Shankar, in reply, admitted awareness of earlier decisions of this Bench, as well as other Benches of the Tribunal, particularly the one entitled: "M/s.. Union Carbide India Ltd., Calcutta v. Collector of Customs, being Misc. Order No. 29/84-D, dated 8-2-1984 : 1984 (16) ELT 525 (Tribunal)", but nevertheless, indicated that he would like to put forth arguments in an endeavour to show that the view so far held was not correct. He accordingly addressed arguments on the point of entertainability of the application.
4. Dr. Gauri Shankar formulated four propositions in support of his contention that the application could not be held as debarred urging that; (1) section 130 of the Act confers a valuable right of reference to High Court on questions of law and the Tribunal should effectuate that right; (2) exclusion of jurisdiction of Supreme Court should be express, and not implied or incidental; (3) in this case, the dispute, as finally adjudicated by the Tribunal, was not as much pertaining to rate of duty as qua the provision of Section 17(4) of the Act vis-a-vis Section 15(2) and as such on the facts of this case, it could not be said that the order was in relation to dispute as to rate of duty; and (4) there was difference of views in two High Courts inasmuch as that whereas the Bombay High Court in case of M.S. Sawhney v. Sylvania and Laxman Ltd., followed in a series of other cases, had taken the view that the relevant date was the date of entry into territorial waters, other High Courts; particularly, High Court of Delhi in the latest case of Jain Shudh Vanaspati (1983 ELT 92), has taken a contrary view and that this situation alone made it a fit case of reference.
5. The learned Counsel elaborated his arguments contending that Section 130 of the Act has, in clear terms, provided for, reference to High Courts, and that the view which the Tribunal is currently taking or is proposing to take, would result in negation of that right, and further would operate in excluding the jurisdiction of a superior court, that being a High Court in this case. He quoted from G.P. Singh's "Principles of Statutory Interpretation (3rd Edition) page 530" to buttress his argument that such an interpretation should be avoided which would restrict or curtail jurisdiction of a superior court. He further argued that it would be erroneous to assume, that reference to High Court stands excluded because in this case the order, of the Tribunal itself indicates that primary question decided was as to scope of Section 17(4) of the Act, and that seems to have been the real issue before the Bench, and that, this was a very vital question of law, namely, as to in what cases, an assessment once finalised, could be reopened. He finally cited AIR 1961 Gujarat page 51 by relying on the observations contained in para 10 and contended that there were three stages in the charge of Customs duty; the first being the levy thereof, the second of assessment and the third and final prescribing the mode or method of collection and recovery of the amount assessed; and contended that the present was a case not relating to rate of duty but only that of collection thereof and as such it would be erroneous to hold that the question involved was that of rate of duty.
6. Shri K. Chandramouli, in his reply, primarily, placed reliance on the earlier decisions of the Tribunal, stating that intention of. the legislature was clear to the effect that in all matters relating to rate of duty, appeal lay to the Supreme Court under the provisions of Section 130E(b) of the Act, and that in this case, the whole question was as to what rate of duty ought to be charged on the goods imported, and thus it was basically a matter having relation to rate of duty and consequently reference to High Court was precluded and that the party's only remedy was by way of appeal to the Supreme Court.
7. In reply to Dr. Gauri Shankar's arguments that the Act dealt with Customs duty in one aspect or the other and in that view of the matter, no reference could lie which would render provisions of Section 130 of the Act nugatory, Shri Chandramouli pointed out that that could not be the case because there were provisions in the Act which dealt with matters, other than that of rate of duty such as seizure, confiscation or penalty, and made pertinent reference to Section 116 of the Act.
8. We have given our very anxious consideration to the matter, in view of the insistence by the learned Counsel of the applicants that such an application did lie, but we are constrained to hold that in face of the dispute involved in the present case, present application cannot be held maintainable.
9. We would like to recapitulate the issue which was persistently raised by the applicants, which we find to have been confined solely as to the rate of duty applicable to the goods imported by them. We further observe on a reference to the record that Section 17(4), now highlighted by the learned Counsel of the applicants, was not even in focus up to the stage of the appeal, and entire thrust was on the date of importation, for the purpose of rate of duty. It was only after attention of the counsel for the applicants, who then appeared at the appeal stage, was invited to the decision of the High Court of Delhi in Jain Shudh Vanaspati case (supra) that realising that it may be futile for him at that stage before the Tribunal, to try to argue against the view taken by the Delhi High Court, and so when confronted by this situation, while not conceding, the learned Counsel came up with this alternative argument as to re-assessment in terms of Section 17(4), which was allowed in all fairness, but the tenor of the order makes it categorically clear that the dispute still related as to the rate of duty.
10. Although we have no doubt in our mind as to the basic dispute in this case being that of rate of duty, but still we would like to observe that the questions which have been even now pin-pointed, as questions of law, by the applicants and have been formulated vide Serial No. 8 of their application for reference, unmistakably indicate that the focal point remains that of rate of duty. We would like to reproduce some of the questions :- (a) Whether in view of the provisions of Section 12 of the Customs Act, 1962, the point of time when the duty liability under the said Act is when the vessel carrying dutiable goods, enters the territorial waters or is postponed till the Bill of Entry is presented under Section 15 of the said Act.
(b) Whether Section 12 should be subordinated to the provisions of Section 15 of the said Act.
(c) Whether Section 15 which lays down the procedure for determination of duty can be construed as part of the charging section as the learned Appellate Tribunal has held. (d) Whether learned Appellate Tribunal erred in coming to the conclusion that the duty assessed before entry inwards of a vessel is only an advance assessment or tentative....
(e) Whether having made the representations and/or promise made and contained in the said two notifications dated January 5, 1979 on the basis whereof the petitioner acted to its detriment and changed its position, it is within the powers of the Central Government to withdraw and/or curtail the exemption granted under the said two notifications dated January 5,. 1979 before the expiry of the same.
Is the Central Government bound by the promises and/or representation contained in the said two notifications dated January 5, 1979.
(f) Whether, assuming though not admitting that the said purported notification dated October 30, 1979 did or could have any application, such notification insofar as it sought to withdraw and/or curtail the exemption granted by the said two notifications dated January 5, 1979 has and is illegal, null and void and of no effect whatsoever.
11. A bare reading of these questions, thus puts the matter beyond pale of any doubt. Questions pertaining to true scope and extent of Section 17(4) have also been raised though, having been allowed to be argued at the appeal stage, but we find that this induction of other issues would not alter the position, because the terms of Section 130 of the Act are unequivocally clear inasmcuh as that whenever an order has "among other things, a relation to the rate of duty of customs...." Deference is ruled out. This Bench has already, in the case of Union Carbide India Ltd. (supra), of which the learned Counsel for the applicants is aware, exhaustively considered the scope of the words "having a relation to", and we reiterate that reading Section 130 as a whole, where the order had even, inter alia, decided questions not only relating to, but having "a relation to rate of duty", then reference application is not maintainable.
12. The intention of the legislature thus being plain and unambiguous, we do not find it possible to be swayed by the repeated emphasis made by the learned Counsel that any interpretation which has effect of negation of the right of a litigant or ouster of jurisdiction of a superior court, ought to be avoided because, with all respects to the High Court, we find that the section conferring on a party right of seeking reference, has itself circumscribed the said right, by confining or restricting the scope of the matters, in which reference can be sought. It is thus the Legislature which has put an embargo on the exercise of right, in given cases and, has precluded jurisdiction of the High Courts, and the Tribunal being creature of the statute has to strictly interpret terms thereof. We feel fortified in our view by observations of the Supreme Court, as reported in AIR 1961 S.C. 1963 (Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co.
Ltd.) pertaining to reference application under the Income-tax Act, which would equally apply here also. Their lordships while dealing with the provisions of the said Act, held, that :- "... Section 66 creates a special jurisdiction, that the power of the Tribunal to make a reference and the right of the litigant to require it, must be sought within the four corners of Section 66(1), that the jurisdiction of the High Court to hear reference is limited to questions which are properly referred to it under Section 66(1), and that such jurisdiction is purely advisory...." 13. We also cannot help observing that whole scheme of the Act, leads to an inescapable inference that the intention of the Legislature was throughout to give a special treatment to cases involving rate of duty, and value of goods for purposes of assessment. This intention can be clearly discerned from the very first provision as to constitution of Benches, as contained in Section 129C of the Act which provides that "questions having a relation to the rate of duty of Customs or to the value of goods for purposes of assessment" (emphasis supplied), shall be heared by Special Benches comprised by three Members, having all India jurisdiction. Then an appeal to Supreme Court has been provided specifically and directly as of right, (and not by way of leave or permission), by Section 130E(b) of the Act, and it is in this context that reference to High Courts has been excluded. We can venture to say, on the basis of our working experience that this is because of the need for a uniform and integrated approach to matters having recurring implications and which may involve assessees falling within different jurisdictions. This explains the legislative intent in providing settlement of such disputes, firstly by Special Benches, and in the event of any party feeling aggrieved, by way of appeals to the Supreme Court, whose mandate runs throughout the length and breadth of the country.
14. We, therefore, do not find any force in the contention that by the view we are taking, party's right is being negatived or jurisdiction or superior court is being excluded. We, on the other hand, are seeing to it that the intention of the Legislature is carried out in its true perspective, and jurisdiction by way of appeal vested in the highest court of the land is utilised by the party, by filing statutory appeals to Supreme Court, and not insisting on references, where they do not lie. We have also held in case of Collector of Customs, Indore v.Bhopal Sugar Industries Ltd., Sehore 1984 ECR 265 (CEGAT), that a reference to Supreme Court on account of conflict in the decisions of High Courts, as contemplated by Section 35H of the Central Excises and Salt Act, 1944, would lie only if there was a properly maintainable, and duly entertained, application under Section 35G of the said Act.
The provisions of Sections 130 and 130A of the Act are pari materia to the provisions of above quoted sections, i.e., Sections 35G and 35H of the Act and these observations shall apply appositely here also, with the result that in case reference itself was not maintainable under Section 130, the question of invoking Section 130A, for reference to Supreme Court would not arise, because that can only be through a properly maintainable application under Section 130. In the result, the mere fact that there was some divergence in the views taken by the Bombay High Court and the Delhi High Court, would not entitle the applicants to have a reference made, and the only remedy for them seems to have been by way of appeal to the Supreme Court. We are therefore constrained to reject this application.