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TMI Blog1987 (5) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... under CD(T)(BOM)-A. No. 350/81. The application elaborately repeats the various arguments contained in the appeal of Shri Abdulla Abdul Kadar. But on behalf of the applicant, Shri Sivani summarised the following points of law which required to be referred to the High Court in his opinion :- (1) The applicant had been discharged in the cr. prosecution case filed by the Customs authorities and their appeal to the Sessions Court had been rejected. In view of the discharge of the applicant by the Additional Chief Metropolitan Magistrate, the advocate submitted that the order imposing the penalty on him was required to be set aside. (2) Shri Sivani next argue that the applicant was denied defence by a Sr. Counsel and this amounted to non-com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would indicate that there was no confessional statement by the applicant. (5) Shri Sivani submitted that Shri Jim was a co-accused and his statement could not be relied upon without independent corroboration. In reply to the Tribunal s query Shri Sivani accepted the fact that Shri Jim was respondent and not a co-accused. However, he pressed his point that the acceptance of the statement of Jain without any corroboration was not correct in law. (6) Shri Sivani finally submitted that the adjudication order did not comply with the principles of natural justice, as laid down by the Supreme Court in the case of Ambalal Union of India - A.I.R. 1961 Supreme Court 264. There was no identification by Jim to establish the identity of Babu . Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate Shri Sivani on behalf of the applicant. He did not protest to say that he was not prepared to argue the appeal. This was not a question of law. Shri Pal drew our attention to paras 13 and 14 of the Tribunal s order. As per Boormal s case mentioned in para 14 of the Tribunal s order, the department was not required to prove its case against an offender with mathematical precision. The point raised by the learned advocate regarding the Tribunal s reliance on the page of Mahavir Diary recovered from Jim s possession and the diary recovered from the applicant s possession was a matter of evidence, and not a question of law. As regards the advocate s contention that there was no confession on the part of the applicant. Shri Pal drew our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate s contention for referring this point to the Hon ble Bombay High Court for a ruling. (2) The next point contended by the learned advocate is the denial of the services of a Sr. Advocate to the applicant at the time of hearing of his appeal by the Tribunal. It has been urged by Shri Sivani that the Sr. Counsel Shri Karmali was out of India on his annual vacation and therefore the hearing of the appeal which was fixed on 22-5-1986 should have been adjourned. Section 129B of the Customs Act prescribes giving an opportunity to the appellants of being heard. If therefore, the Tribunal were to wait for the convenience of a Sr. Counsel, the Tribunal would not be able to dispose of the appeals. While the learned Sr. Counsel could avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay High Court. (4) The fourth point is also one relating to appreciation of evidence rather than a question of law. The learned advocate has contended that there was no confessional statement by Shri Abdulla Abdul Kadar. The learned SDR on the other hand has drawn our attention to para 17 of the Additional Collector s order. The Tribunal has relied on the Collector s finding in this behalf. In any case, this is a point of fact and not a question relating to interpretation of law and hence it cannot be referred to the Bombay High Court in terms of Section 130 of the Customs Act. (5) Shri Sivani contended that Shri Jim was a co-accused and his statement without any independent corroboration should not be accepted against the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike to add that out of the 6 points which Shri Sivani contended as questions of law, it is necessary to point out that the points at Sr. Nos, 2, 3, 4 and 6 are not questions of law and, as such, they are not required to be referred to the Hon ble High Court. Points at Sr. Nos. 2 and 6 relates to the denial of principles of natural justice. Whether there had been a denial of principles of natural justice depends upon the facts and circumstances and the answer to that question entirely depends upon the findings on facts. 6. The points at Sr. Nos. 3 and 4 relates to the appreciation of evidence. Unless the appreciation is wholly perverse, no question of law would arise and, therefore, referring those points to the High Court would not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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