9911796707
TMI Blog1994 (10) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituting the Tribunal. They concurred on some points and differed on certain others. Copies of their separate orders dated July 22, 1987, are annexures "C" and "D". Some of the points had been held against the Revenue by both the members and therefore the Revenue filed two reference applications R. A. Nos. 236 and 237 of 1987 to refer certain questions of law stated to arise out of the concurring orders of the two members. These reference applications were pending when the matter was heard on the points in difference by a third member to whom they were referred. He passed the order, annexure "G", giving his opinion on the points of difference. That was on January 29, 1991. Consequential order incorporating his findings, annexure "H", was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Tribunal and they held that all the questions raised were liable to be considered to see whether there was any referable question of law. The Tribunal, however, held by its order, annexure "K", that the questions raised were questions of fact not liable to be referred to this court for opinion under section 256(1) of the Act. The reference applications were, therefore, dismissed. The Revenue has filed Original Petitions Nos. 14365, 14488 and 14494 of 1992 to refer the various questions sought by them in their three reference applications. The assessee has filed Original Petition No. 15260 of 1992 to raise the question regarding the applicability of section 144B. Before us also Sri G. Sivarajan for the assessee raised a preliminary o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defect is that they were filed earlier at a time when the formal order disposing of the appeal had not been made. But the fact remains that the reference applications were filed earlier and were kept pending to await final disposal of the appeal. When the Revenue was undoubtedly entitled to file reference applications afresh within the period prescribed by section 256 of the Act after the order, annexure "H", was passed, instead of formally filing an application afresh what the Department did was to pursue its earlier reference applications along with the new reference application which dealt with the question arising out of the orders, annexures "G" and "H". We are not prepared to uphold the contention of the assessee that the questions ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence that the balance 24 cartons would only be broken shrimps which had been misclassified. There was adequate material before the Tribunal to come to the conclusion that the case of the assessee was true and that it was not a case for addition of the value of 24 cartons. So far as the 100 cartons are concerned, there was difference of opinion between the two members and eventually the third member concurred with the judicial member in holding that 100 cartons had been borrowed for the purpose of export from a sister concern of the assessee. There was enough material before the Tribunal to come to this conclusion. The appreciation of evidence on this point cannot, for any reason, be stated to be either perverse or unreasonable, nor coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be made. The last question stands concluded against the Revenue by the decision of this court. There are two other questions raised by the Revenue which do not merit any separate consideration. They do not give rise to any referable question of law. We do not therefore find any question of law arising out of the order in the reference applications filed by the Revenue. Original Petitions Nos. 14365, 14488 and 14494 of 1992 have therefore to be dismissed. The assessee's application containing the question under section 144B requires consideration only if we had referred the questions which the Revenue had sought in their petitions. Since we are not referring any question of law as arising out of the order at the instance of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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