Decided on June 10,1991



T.P. Nambiar, Member (J) - (1.) THE Collector of Customs, Calcutta has filed the instant Reference Application No. 11/87 for referring four questions of law said to have arisen out of the common order No. 58-Cal/1987-65 dated 9-3-1987 passed by this Tribunal in disposing of two appeals bearing Numbers - C-95/86 and C-96/86 arising out of the order-in-original Nos. S. 2-16/85-SIB and S. 2-25/85-SIB dated 18-9-1985 in both the cases, passed by the Collector of Customs, Calcutta, involving similar facts and circumstances. This Tribunal disposed of both the above-said appeals by a common order No. 58-Cal/1987-65 dated 9-3-1987.
(2.) In order to appreciate the contentions we may briefly narrate the facts in this case. M/s. Anandilal Banwarilal & Co., the respondents in this case imported two consignments and declared the goods as "Prime Stainless Steel Tubes" for clearance. The goods were warehoused under Section 59 of the Customs Act, 1962 and since the value of the goods imported appeared very low to the Department the Special Investigation Branch of the Customs House investigated the cases and on examination of the goods the same were found to be 'disposal goods', which according to the Department was imported in contravention of Para-358(1) of ITC Handbook-AM-85 and were liable to confiscation. Accordingly, two separate show cause notices with respect to each consignment were issued to the respondents calling upon them to show cause as to why the subject goods be not confiscated and penalty imposed in this regard. The respondents replies the same. The Collector adjudicated the case vide his two separate orderin-original Nos. (i) S. 2-25/85-SIB dated 18-9-1985 and (ii) S. 2-16/85-SIB dated 18-9-1985 - ordered for the confiscation of the goods with an option to redeem the same on payment of a redemption fine and also imposed penalties. Aggrieved by these two adjudication orders the respondents filed two separate appeals which were disposed of by this Tribunal by its common Order No. 58-Cal/1987-65 dated 9-3-1987. Later, the applicant filed the above Reference Application. It was contended that one Reference Application is not sufficient. The applicant, thereafter, filed another Reference Application which was registered by this Tribunal as Reference Application No. 2/88. In that R. A. the applicant had clearly stated in Column No. 2 that the same pertained to the order passed in Appeal No. C-96/86. Accordingly, this Tribunal took up both the Reference Applications bearing Nos. 11/87 and 2/88 for hearing on 26-2-1988. On that day of hearing the learned S.D.R, Shri M.C. Thakur had stated before the Tribunal that the Reference Application No. 11/87 itself would suffice as the Reference Application with reference to both the appeals which were disposed of by a common order. He, therefore, sought permission to withdraw the Reference Application No. 2/88 and that permission was granted and the Reference Application No. 2/88 was dismissed by this Tribunal as withdrawn vide its Order No. 59(A)-Cal/88-59(C) dated 26-2-1988. Thereafter, the Reference Application No. 11/87 was heard on merits and both the Honourable Members of the Tribunal who heard the case, came to the conclusion that the two Reference Applications are called for in case of a common order of the Tribunal disposing of two appeals. But Member (J) dismissed the Reference Application whereas M (T) stated that an opportunity should be given to the applicant to choose as to which appeal (of the two filed before the Tribunal), he would prefer to pursue. Due to this difference of opinion the matter was referred to the Honourable President who by Order dated 21-3-1990 ordered that the present Bench consisting of Shri K. Sankararaman, Member (Technical) and Shri T. Prabhakaran Nambiar, Member (Judicial) should hear the same and dispose of the matter in accordance with law.
(3.) IN view of the above order passed by the Honourable President we proceeded to hear the parties in this regard. The learned Advocates, Shri S.K. Bagaria and Shri Sekhar Mukhopadhyay appeared for the respondents and the learned S.D.R., Shri M.N. Biswas for the Department. Shri Biswas appearing for the applicant contended that one Reference Application will suffice in this case as both the appeals were disposed of by a common order. The learned S.D.R. further contended that under Section 131 of the Customs Act, 1962 the aggrieved party by an application made in this behalf can require the Appellate Tribunal to refer to the High Court any question arising out of such an order. Therefore, he contended that the order being one order one application for reference will suffice.;

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