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TMI Blog1987 (6) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... any event, whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the appellant knew or had reason to believe the contents of the package in question ? (3) Whether the Hon'ble Tribunal attached due weightage to the judgment of the Second Additional Chief Judicial Magistrate, Indore relied upon by the appellant in addition to other grounds in support of his contention that the appellant was not aware of the contents of the package ? (4) Whether the Hon'ble authorities below applied proper yardsticks and valid criteria in the matter of levy of penalty and whether the Department had discharged the burden of proof regarding the appellant's mens rea in the case before any penalty could be imposed upon the appellant ? 3. When this application came up for consideration on 11-6-1987, the applicant as well as his Counsel were present. But then, the learned advocate Shri R.G. Merchant sought an adjournment on the ground that some other advocate was earlier engaged and that advocate had informed the applicant that he would not be able to attend and he had received the file on the previous night and he could not peruse the complete file. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant was aware of the contents in the bundle. Since the goods were loaded by the staff of the appellant in the ordinary course of business there was no reason whatsoever to believe that the appellant was aware of the contents. It is respectfully submitted that having held that it was Narayandas who had sent the goods and having levied a penalty of Rs. 50.000/- upon the said Narayandas, the Tribunal ought to have held that levying penalty upon the appellant is not proper. It is respectfully submitted that in the light of the judgment and order, dated 15-5-1986 passed by the learned Judge of the Second Additional Chief Judicial Magistrate, Indore, the Tribunal ought to have held that there was neither knowledge nor intention on the part of the appellant to transport the smuggled goods". 6. I have carefully considered the statement contained in the reference application and the submissions made by Shri Pal. 7. Sub-section (1) of Section 130 confers a right on the Collector of Customs and the other party to appeal to make an application within 60 days of the date of service of the notice of an order under Section 129B requiring the Tribunal to draw up a statement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not appear and he had sought an adjournment by a telegram of the same date but had not received any reply. Thus the appellant did not have adequate opportunity to make his submission and therefore the Collector's order was illegal and unjust and there had been a violation of the principles of natural justice. The Tribunal considered this contention in para 8 of its order. The Tribunal had observed that the adjudicating authority had fixed the date 30-4-1975 for the personal hearing a notice of which was duly served on the appellant (the present applicant). The adjournment was sought by a telegram dated 30-4-1975. There was nothing on record to show that this telegram was received by the adjudicating authority. Nothing prevented the appellant from seeking adjournment sufficiently early. The further observation of the Tribunal was "the next contention was that the collector had adjourned the hearing to a subsequent date at the request of some other parties but the said date had not been intimated to the appellant. Even according to the appellant the adjourned hearing was to hear other parties who had appeared before him. In the circumstances, if the adjudicating authority had not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request was made on behalf of the appellant to cross-examine Shri Chandrasekhar, it cannot be contended that those observations are factually incorrect. 13. The finding regarding compliance of the principles of natural justice was based on the appreciation of facts. The appreciation of facts cannot be characterised as perverse. It is also not the contention of the applicant that the Tribunal while appreciating the facts took into consideration the non-existent evidence or relied on irrelevant evidence. In the circumstances no question of law would arise and therefore there is no scope to refer the first question set out by the applicant in his application. 14. As has been rightly contended by Shri Pal, the applicant in the guide of a reference application is seeking to review the order made by the Tribunal in the appeal. Having regard to the scope of the reference application, Question No. 2 cannot be considered as a question of law. The finding of the Tribunal with regard to his knowledge is based on the appreciation of the circumstances appearing in the case as well as the oral evidence in the form of statements of witnesses. It was not contended that the inference drawn by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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