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TMI Blog1994 (11) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... ce u/s 130 of the Customs Act, 1962. The learned Counsel however, submitted that he would endeavour to put forth a plea that even though the issue relating to jurisdiction was not canvassed or argued the same would arise on the face of the order to entitle the applicant to canvass it as a question of law for reference within the meaning of Section 130 of the Customs Act. Shri Sundaram further submitted that since the whole issue lies in a short compass, instead of stay application the Dept. would prefer to argue the reference application itself. 3. In view of the submissions made by the learned Central Government Standing Counsel for the applicant with the consent of the parties, the reference application itself was taken up and the order dismissing the stay application pending reference application was passed. 4. The learned Central Government Standing Counsel pleaded that while he would concede that in the order passed by the Tribunal substantial justice has been done to the Department inasmuch as sufficient safeguard has been provided in the order to ensure that the goods which have been ordered to be released are utilised for the purpose for which these have been imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, has held that the Respondents are a Charitable Organisation and therefore, eligible for importation of the goods under para 98(v) of the Handbook of Procedures. The question that arises is when after having held that the Respondents were eligible for importation of the goods as a Charitable Organisation for the import trade control purposes, the Tribunal could have proceeded to consider the benefit of Notification 85/82 wherein no doubt consideration for giving benefit of the Notification is again whether the Respondents are a Charitable Institution or not. He pleaded that in the Notification there are certain conditions which are to be fulfilled before the benefit of the Notification can be allowed. In this view of the matter he pleaded that the matter can be taken to fall within the jurisdiction of the Special Bench. He clarified that he is not urging that this Bench of the Tribunal could not have considered the issue as to whether the Respondents can be considered as a Charitable Institution or not as such. He pleaded that for the reasons stated by him so far as the point of jurisdiction is concerned, the question of law as to whether the Regional Bench has the jurisdiction t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle is conerned the Regional Bench has clear jurisdiction and that the only objection was that the Regional Bench could not proceed to consider the benefit of Notification in question. He pleaded that once the Respondents have shown that they have satisfied the requirements for the purpose of import under para 98(v) of the Handbook of Procedures, then the natural irresistible corollary that follows is that the Respondents will be automatically eligible for the benefit of Notification cited supra inasmuch as they are held to be a Charitable Organisation in terms of para 98(v) ibid. He pleaded that as it is, in the order of the lower authority action has been taken only for the reason that the Respondents could not be considered as a Charitable Organisation and in regard to the nature of the goods, it will be seen from the order of the Tribunal that the lower authority has not entered any adverse finding for the purpose of benefit of the Notification in question and the Tribunal also in the order dealt with the issue from the angle of the Respondents being Charitable Organisation. He further pleaded that the plea taken that the Respondents could not be eligible for the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT : does the question that requires determination have a direct and proximate relation, for the purpose of assessment, to the rate of duty applicable to the goods or to the value of the goods. as to the scope of the controversy and have answered the same as under in para 11 of their judgment as under : The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purpose of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods". He pleaded that what follows from the above judgment is that once it is decided that import can be allowed to the Respondents holding them as a Charitable Organisation from the licensing angle, the benefit of Notification 85/82 follows as a natural corollary. He pleaded that as held by the Hon ble Supreme Court the issue relating to the benefit of Notification does not arise directly and proximately to the rate of duty. He pleaded that in this view of the matter, question of law on jurisdiction does not arise for referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order (4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the finding given by it. Stating the position compendiously, it is only a question that has been raised before or decided by the Tribunal that could be held to arise out of its order". This Tribunal in the case of Thiru Arooran Sugars Ltd. v. CCE, Madras, reported in 1984 (17) E.L.T. 163 has held as under : As rightly pointed out by the Senior Departmental Representative, the appellant cannot raise new points neither pleaded in the appeal grounds nor argued before the Tribunal as they do not [form] part of the order of the Tribunal. The scope of a reference application is restricted only to question or questions of law arising out of the order passed by the Tribunal. The applicant cannot supplement new points neither pleaded nor [argued] and seek reference of the same to the High Court. We observe that admittedly in the present case the question of jurisdiction was neither raised no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore before the Tribunal related to whether the goods can be allowed importation under the relevant import and export policy in terms of para 98(v) thereto. The learned Original authority had also touched upon the misdeclaration for the purpose of availing of the benefit of Notification 85/82, dated 15-3-1982 as reproduced above. The learned lower authority has also referred to the certificate produced by the Respondents in para 6.0 of his finding for the purpose of availing of the benefit of the Notification cited supra. We observe that the Tribunal dealt with the issue in the context of the confiscation which has been done and the acceptability or otherwise of the certificate for the purpose of holding that the Respondents are Charitable Organisation and therefore eligible for the benefit of Notification No. 85/82. It is observed that for the purpose of consideration whether the Respondents are a charitable organisation or not, the evidence including certificate issued by the Income Tax authorities in this regard have been shown to have been produced before the lower authority which weighed for the purpose of holding that the Respondents are a charitable organisation for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case once the issue from the licensing angle has been decided, the Respondents necessarily have to be considered a Charitable Organisation for the purpose of the benefit of Notification 85/82 as set out in condition No. 1 of the Notification. The only observation in regard to second condition made by the lower authority of the Notification in the order impugned before the Tribunal was that the Respondents made importations in quick succession and the Tribunal in this regard has observed as under : We observe that the lower authority has merely given a finding in this context that the appellants had imported in quick succession consignments of used clothings. We observe that apart from taking into consideration the quantum of goods, the learned lower authority has not entered any finding in regard to the activities and the bona fides of the organistion or in regard to their financial status, the nature and the value of the goods, the sartorial habits of the people. In fact he has entered a finding in favour of the appellants by stating that while the show cause notice appears to conclude that the goods are also not bona fide gifts on the ground that the importer has been im ..... 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