Commissioner of Customs (Prev.) vs Prasanta Sarkar

P.C. Jain, Member (T)

A purported question of law which, according to the Commissioner, arises out of the Tribunal''s Order No. A-692/CAL/97 dated 2.6.97 has been raised in the subject Reference Application. The question raised is-- Whether Hon''ble CEGAT, Calcutta, is correct in setting aside the penalty imposed on Sri Prasanta Sarkar, Order passed by the original adjudicating Authority under Section 112(b) of Customs Act. 1962.

After raising this question against Item 8 of C. A.- 6 form, statement of facts and Grounds of Appeal have been submitted along with the said Reference application.

It appears from the Reference Application that the Commissioner is acting under a mis-conception of law that the relevant provisions of law relating to the Reference Application, are provisions for reviewing the Order of the Tribunal and that is why, it appears, he has used the expression, ''Grounds of Appeal'' annexed to the C.A. 6 Form. It has been emphasised every time by this Bench that the provisions relating to the Reference Application are not meant for reviewing an Order of the Tribunal. It is meant only for raising a question of law which arises out of the Tribunal''s Order and is required to be referred to the Competent High Court for answering that question of law.

In the present case the Customs (Preventive) is seeking review of the Tribunal''s Order. It is not permissible under the provisions of Section 130 of the Customs Act 1962. It is also seen from the findings of the Tribunal in the Order dated 2.6.97 that the Tribunal on the basis of appreciation of evidence had held that Shri Ram Avatar Agarwal''s statements are in the nature of hearsay evidence and in the nature of statement of co-accused. These statements are not sufficient to penalise the appellants. Consequently, the impugned Order was set aside and the appeal was allowed with consequential reliefs to the appellant. This finding, it is apparent, is an appreciation of evidence. It is well-settled that sufficiency of evidence is not a question of law. Accordingly the question raised by the Commissioner being not question of law is not valid for referring to the High Court. Consequently, the Reference Application is rejected. Pronounced and dictated in the Open Court.