1. Shri Keshab Chandra Paul, Madan Mohan Jewellers, Narsingtola, Silchar, Pin-788001 has filed a reference application under Section 130 of the Customs Act, 1962. The said reference application was received in the Registry on the 20th February, 1985. In column No. 6 of the reference application, the date of communication of the order has been mentioned as 18th December, 1984. Under section 130 of the Customs Act, 1962, a reference application has to be presented within 60 days from the date of notice of an order under Section 129B of the Customs Act, 1962. Thus, the applicant has filed the application after the expiry of the limitation provided under the law. The applicant has required this Tribunal to refer to certain questions said to be the questions of law and arising out of Appeal No. CD(T)CAL-11/79 disposed of vide order No.479/CAL/1984-3104 dated 16th November, 1984 to the Hon'ble High Court.
The applicant has filed an application for condonation of delay.
Relevant contents of the said application for condonation of delay are reproduced as under:- "That the Reference Application was despatched from Silchar in Assam on 13-2-1985.
That normal communications, public transport and other services remained greatly disrupted in and around Silchar at the relevant time due to unnatural atmospheric disturbances.
That the Reference Application that has been forwarded on 13-2-1985 was prepared in Calcutta by the learned Advocate of the Appellant who despatched the same to the Applicant by Registered Post from G.P.O. Calcutta on 29-1-1985 for signature by the Applicant, to ensure quick despatch but unfortunately it reached the Applicant on 12-2-1985.
That the applicant in his turn despatched the same by Registered Post on 13-2-1985 without wasting any time.
That it is being reported that Application reached the Tribunal Office on 20-2-1985.
That the father of the Applicant unfortunately died on 24-1-1985 and his Sradh ceremony was on 23-2-1985. Because of penance the applicant could not leave Silchar till performance of rituals of Sradh of his late father.
That the learned Advocate who drew up the Reference Application also lost one of his cousins whose sradh was performed on 23-1-1985.
That though there was no latches - the natural calamity interfering with the normal workings and services contributed to the delay in delivery of the Application which was posted in time.
That the Applicant is advised that in terms of Hon'ble Allahabad High Court decision in the case of Jhaboo Lal Kesara Rolling Mills v. Union of India and Ors. reported in 1985 Excise Law Times 367 - the Application having been posted on 13-2-1985 is to be taken as filed within time.
That as an abundant caution the applicant is filing this application for condonation of the slight delay if any for no fault of his and in terms of proviso to Section 130(1) of the Customs Act he is craving the leave of the Tribunal and to accept the Reference Application by extending the time if felt necessary.
The Applicant in the facts and circumstances stated above humbly prays that the Appellate Tribunal be graciously pleased to accept the Reference Application by extending the time and decide the prayer according to law." 2. Sri K.B. Basu, the learned advocate has appeared on behalf of the applicant. He has reiterated the arguments and has again referred to the Hon'ble Allahabad High Court judgement in the case of Jhaboo Lal Kesara Rolling Mills v. Union of India and Ors. reported in 1985 ELT 367 (Allahabad). The learned advocate has pleaded that where the appeal is despatched to the appellate authority prior to the expiry of the period of limitation, in that case, it would not be barred by limitation. The learned advocate has pleaded that in the instant case, the reference application was despatched by the. applicant before the expiry of limitation. He has pleaded that the reference application was sent by the applicant per registered post on 30th February, 1985 and the delay is on account of the postal lapse. The learned advocate has pleaded that the postal delay is one of the grounds for the condonation of delay. He has pleaded that the applicant's father had expired on the 24th January, 1985 and his last Sradh ceremony was on 23rd February, 1985. The applicant was passing through the mourning period at the relevant time and as such the applicant was prevented by sufficient cause in the late submission of the reference application. In case the delay is not condoned, the applicant shall suffer irreparable loss.
3. In reply, Shri A.K. Chatterjee, the learned JDR has pleaded that the postal delay in the filing of the appeal is not a sufficient cause but.
the applicant's father's death is a sufficient cause and he has got no objection if the delay in the filing of reference application is condoned.
4. The applicant's father had expired on 24th January, 1985 and the mourning period continued upto 23rd February, 1985 and the appeal was posted per Registered A/D on the 13th February, 1985. I hold that the applicant was prevented by sufficient cause in the late submission of the reference application. I am inclined to condone the delay by virtue of proviso to ection 130 of the Customs Act, 1962. The delay in the filing of the reference application is condoned.
5.Announced in open court. - Inasmuch as, in my opinion, no question of law does arise "within the aforesaid order of the Tribunal. I decline to draw statement of the case and proceed to state the reasons therefor.
6. Briefly, the facts of appeal No. CD(T)CAL-W79 in the case of Shri Keshab Ch. Paul are that on the basis of an information on 22nd March, 1974, Customs Preventive staff, Agartala had kept a watch over the movement of passengers of the first bus from Agartala to Dharmanagar and they had found two persons as per previous information, arrived in the bus stand. In reply to the questions of the Customs Officer they stated that they had one bedding and one old leather suitcase. On enquiry about the contents, the two persons hesitated to declare the contents in the bedding and the suitcase. Both the persons were found in suspicious circumstances and the Customs Officer had brought them to the Customs Office, Agartala, along with their bedding and the leather suitcase. At the Divisional Office, the bedding was opened in presence of the said persons and independent witnesses. The* suitcase was stated to belong to other person namely Shri Gourlal Ghosh. From the bedding it was found that there were 10 numbers of silver lumps weighing 19 kg.
120 gms. and the same were claimed by the applicant Shri Keshab Ch.
Paul. The applicant had stated in a written statement that he had a shop for manufacturing gold and silver articles at Silchar town and that he had come to Agartala from Silchar on 21st March, 1974 at 23.00 hours by truck. He has further stated that on arrival at Agartala, he had purchased the aforesaid silver lumps after making cash payment from one Shri Bimal Basak and he was not able to produce any document in respect of the said purchase. The applicant had also stated that the silver lumps were delivered to him at about 12 p.m. on 21st March, 1974 at the house of Shri Bimal Basak and he had come for the first time to Agartala for purchasing silver. The weight of the number of silver lumps were said to be 19 kg. 120 gms. and the applicant had paid Rs.10,000 to Shri Basak. The applicant had also stated that he had no account with said Shri Basak and he was the actual owner of the 10 silver lumps recovered from his possession. The applicant had also stated that he had come to know from different persons about the importation of silver from the adjacent foreign country to Agartala and that it was his belief that the said silver lumps under seizure were imported from Bangladesh. The revenue authority tried to contact Shri Bimal Basak, but he was not available at the address. The applicant also could not produce him. The revenue authority did not accept his story and had reason to believe that the silver lumps in question had been illegally imported into India from Bangladesh and had seized the same. A show cause notice under C.No.VIII/10/10/74/130 dated 7th September, 1974 was issued by the Deputy Collector of Customs & Central Excise, Shillong calling upon the applicant as to why the said silver lumps should not be confiscated under Section 111(b) and (d) of the Customs Act, 1962 and why penalty under Section 112(a) of the Customs Act, 1962 should not be levied. In reply to the said show cause notice, the applicant vide his reply dated 31st October, 1974 stated that he had not violated any provisions of the Customs Act, 1962 as alleged in the show cause notice dated 7th September, 1974. The applicant had stated that he is a certified goldsmith and the silver was purchased locally from various persons at his premises at Silchar, and was taken to Agartala for selling at a better price. Failing to get a better price, he was returning to Silchar with the silver and he was detained by the Customs Officer on 21st March, 1974. The applicant had further contended that he could not give the names of the persons whom he met at Agartala as he had visited Agartala for the first time. Being a stranger, he could not sell silver at Agartala. The applicant had lso produced receipts that were given by the persons from whom the silver was purchased, but he did not maintain any accounts. The total purchases were 825 tolas and 9.600 kg. valued at Rs.8,897 and the total of the same was 19.2228 kg. The learned Deputy Collector did not accept the contention of the applicant and had confiscated the silver weighing 19.120grms. in 10 lumps under Section 111(b) and (d) of the Customs Act, 1962. However, he had given an option to the applicant to redeem the same under Section 125 of the Customs Act, 1962 after payment of a fine in lieu of confiscation of Rs.19,120. The learned Deputy Controller had imposed a personal penalty of Rs.10,000 under Section 112(a) of the Customs Act, 1962. No predeposit of penalty was made.
Being aggrieved from the aforesaid order, the applicant had filed a revision application to the Government of India and vide Government of India Order No. 85/78, the appeal was remanded to the Appellate Collector of Customs, Calcutta. The learned Appellate Collector of Customs upheld the findings of the lower authorities in respect of confiscation of silver, but had modified the order to the extent that the personal penalty was reduced from Rs.10,000 to Rs. 2,500. Being aggrieved from the aforesaid order, the applicant had filed a revision application to the Additional Secretary, Government of India. The same was transferred to the Tribunal and was disposed vide Order No.479/CAL/1984-3104 dated 16th November, 1984. Being aggrieved from the aforesaid order, the applicant has reference to the High Court.
In the reference application, the applicant has proposed the following questions of law: "1. The Appellate Tribunal erred in law and acted improperly in ignoring and avoiding consideration and decision on the illegalities and improprieties in the order passed by the Appellate Collector of Customs on appeal against Order-in-Original by which he upheld and confirmed the order of confiscation and imposition of penalty and against which the appeal was directed.
2. The order passed by the Appellate Tribunal being perfunctory and in violation of directions of law should be held to have been rendered invalid.
3. The Appellate Tribunal erred in law and acted improper in selecting issues and considering them in the manner done in its order taking them out of their contexts.
4. The Appellate Tribunal erred in law and acted improperly in treating the questions of violation of principles of natural justice and denial of opportunity, of making representation ' and of being heard as two distinct and separate issues and while considering only one items under each of the two issues respectively.
5. After positive finding that the applicant denied his purported statement dated 22-3-1974 by his letter dated 26-3-1974 the Appellate Tribunal erred in law in relying on the said purported statement dated 22-3-1974 and quoting excerpts from the said statement - most likely quoting from the unattested and wrongly translated copy in English ignoring the fact that the applicant was denied the opportunity of disproving the said statement and in the adjudication proceeding story of his purchase of silver at Agartala was held not to be true.
6. The appellate Tribunal erred in law in finding - there were no violation of principles of natural justice relying on the Superintendent's offer in his letter dated 26-9-1974. The Appellate Tribunal misinterpreted and distorted the law as the applicant was under no obligation legal or otherwise to visit the office of the Collector for seeing the original copy. The offer should have been held to be dishonest and fraudulent.
7. The Appellate Tribunal erred in law in interpreting the request for opportunity to cross-examine 'the persons whose statements he (Deputy Collector) intends to rely' as request for cross-examine the search witnesses and held there has not been any denial of opportunity as no statements were recorded from the search witnesses.
8. The prayer was for opportunity to cross-examine officers seizing the silver and obtaining the statement dated 22-3-1974 and the witnesses thereto to establish that statement referred was under duress and also to prove that his claim of licit acquisition and possession was not belated. The plea of absence of statement of search witnesses is frivolous as the conduct of the officers and search witnesses are their respective statements. Saver of knowledge of absence of statement is also questionable.
9. The Appellate Tribunal erred in law and acted improperly in finding that the Revenue has discharged the initial onus of proof on the strength of observations by the Supreme Court in two reported cases without any finding that facts of the cases quoted are similar to the case under consideration.
10. The Appellate Tribunal ignored and suppressed (1) what the applicant was called upon to meet, (2) that story of purchase of the silver lumps at Agartala was held not to be true, (3) Portions culled from the statement fell short of being conclusive and therefore can not be treated as circumstantial evidence, (4) portions culled from the statement which was denied, (5) rejection of the story of licit acquisition and possession was capriciously arbitrary and reasons advanced are frivolous and contrary to facts.
11. What has been held to be undisputed case by the Appellate Tribunal allegedly after going through the facts and circumstances of the case is perversion of truth and stands contradicted by "Inventory of goods seized/Detained" and the story put forward is a fabrication.
12. Findings are based on facts taken out of their proper contexts and on misinterpretations and distortions." 7. Shri K.B. Basu, the learned advocate has appeared on behalf of the applicant. He has pleaded that there is denial of principles of natural justice. The retracted statement of the applicant has not been appreciated. No circumstances has been discussed in the order. He has pleaded that this Court should refer the proposed questions of law to the Hon'ble High Court.
8. In reply, Shri A.K. Chatterjee, the learned JDR has pleaded that the proposed questions of law have no reality. There cannot be any challenge about the order, which has been passed by the Tribunal on merits after taking into consideration the evidence and the materials facts. The learned JDR has further argued that under the provisions of the Customs Act, 1962, this Tribunal cannot review its own order. The learned JDR has also pleaded hat the applicant on page 3 of the reference application (in para... has sed improper language. He has pleaded that the applicant should have taken due care in using better and proper expressions. Lastly, he has pleaded that this Tribunal had come to a finding after due appreciation of the facts and the submissions made before it and no question of law is involved. The reference application needs be dismissed.
8A. In reply, Shri K.B. Basu, the learned advocate has pleaded that as per learned JDR's arguments, the provisions of making a reference application becomes superfluous. He has again requested this court for making a reference to the Hon'ble High Court.
9. Having considered the submissions of both the sides, I hold that this Tribunal had considered all the facts and circumstances and the law. Accordingly, I hold that no question of law is involved and the finding of the Tribunal is the finding of the facts. In the result, the reference application is rejected.