9911796707
TMI Blog2011 (7) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... of law, namely, under Section 120(2) of the Customs Act. - 4919 OF 2011 - - - Dated:- 4-7-2011 - Dr. MUKUNDAKAM SHARMA, J. JUDGMENT 1. Leave granted. 2. This appeal is directed against the judgment and order dated 20.04.2010 passed by the Bombay High Court in Custom Reference No. 1 of 2002 whereby the High Court answered the question referred to it by the Customs, Excise and Gold (Control) Appellate Tribunal [for short "the Tribunal"] in favour of the appellant and against the Revenue holding that the Tribunal was not justified in invoking the provision of Section 120(2) of the Customs Act, 1962 to confiscate the seized silver to the extent it was confiscated in exercise of that power in absence of any show cause notice and also in absence of opportunity of being heard. By the aforesaid judgment and order, however, the High Court refused to expand the scope of reference to the confiscated seized silver to the extent of 1713.807 kgs. and restricted it to the silver of 194.250 kgs. only. 3. The Directorate of Revenue Intelligence [for short "the DRI"] searched the premises of the appellants on the basis of information gathered by it to the effect that large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The High Court took up the aforesaid application for consideration and passed an order on 17.03.1999 to the following effect: - "2. We have heard the learned counsel for the parties. The learned counsel for the Petitioners has submitted redrafted questions which according to him bring out the real controversy that arises from the order of Tribunal. We have carefully considered the questions proposed by the Petitioners before Tribunal and the redrafted questions submitted before us. We have also heard Mr. R.V. Desai, learned counsel for the Respondent. In our opinion, the following question of law arises from the order of the Tribunal: "Whether the Tribunal was justified in invoking the provisions of Section 120(2) of the Customs Act, 1962 to order confiscation of silver weighing 194.250 kgs. purchased from M/s. Dilipkumar Harichand Sons, Jalgaon, when the said provisions had not been invoked in the Show Cause Notice and when the applicants were not given any opportunity of being heard in the matter by the Customs, Excise Gold (Control) Appellate Tribunal?" 3. We accordingly direct the Tribunal to refer the above question to this court for opinion under Section 130 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s would get frustrated and would be rendered otiose. 7. The counsel appearing for the respondent, however, refuted the aforesaid submissions contenting inter alia that the High Court cannot expand the scope of the reference by including for its consideration the entire quantity of silver, i.e., 1913.256 kgs. It was also submitted by him that the attempt to widen the scope of the question to bring within its fold entire quantity of the confiscated silver weighing 1913.256 kgs. is nothing but an attempt to bring the question for consideration before this Court through back door which is not permissible in law. It was also submitted that the deletion of the words referred to hereinabove would in no way enlarge the scope of the question referred for so far as the silver weighing 194.250 kgs. is concerned, as the same stood on completely different footing than the silver which was imported illegally and, therefore, confiscated. It was submitted by him that the silver weighing 1713.807 kgs. was confiscated under Section 111 (d) of the Customs Act, whereas rest of the silver weighing 194.250 kgs. was confiscated under sub-Section (2) of Section 120 of the Customs Act and, therefore, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal to the High Court in terms of the order of the High Court as also the effect of the deletion of few words from the said question and that thereafter the Tribunal held that the deletion would not make any difference either way because the said deletion was in respect of applicability of the provisions of Section 120(2) of the Customs Act inasmuch as the powers under Section 120(2) were exercised with respect to the silver weighing 194.250 kgs. only. 11.Despite the deletion of the aforesaid words the issue that was required to be considered was only in respect of the provisions applicable being sub-Section (2) of Section 120 of the Customs Act and, therefore, in any event and even after the deletion of the said words the question of law which was referred and was required to be answered by the High Court was restricted only to the said quantity of silver weighing 194.250 kgs. for which only provisions of sub-Section (2) of Section 120 of the Customs Act was being made applicable. 12.In the present case, 11 questions were raised by the appellants before the Tribunal seeking for reference of the same as questions of law to the High Court by way of reference. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are applicable also being different there was no scope for extending the reference by the High Court nor was there any scope for reframing or redrafting the question referred by including another separate and independent question of confiscation of silver weighing 1713.870 kgs. 15.Mr. Soli Sorabjee, Sr. Advocate, appearing for the appellant sought to rely upon sub-Section (4) of Section 130 of the Customs Act to contend that the High Court has the power to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. 16.We have considered the said submission of Mr. Sorabjee, but, unfortunately, we are not in a position to agree with him as it is clear on a bare reading of the said provision that the said provision came into the statute book only with effect from 2003 and, therefore, said provision is not applicable to the facts of the present case. 17.Mr. Soli Sorabjee, Sr. Advocate, also relied on Section 130B which is power of the High Court to require the statement to be amended. The said Section provides that if the High Court or the Supreme Court is not satis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
