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TMI Blog2002 (4) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the Tribunal. But the Tribunal refused to state this case under sub-section (3) of Section 130 of the Act. Thereupon, the department has sought for a reference before this Court under Section 130(3) of the Customs Act. This Court admitted the reference, and the same is pending. The petitioner applied for release of the goods but the customs authority declined on the ground of the pendency of the reference. At this stage the petitioner has prayed for the release of the goods in view of the order passed by the Tribunal in appeal. Submission on behalf of the Petitioner : 2.Learned Counsel for the petitioner submits that once the Tribunal has set aside the order of the customs authority, it is incumbent on the authority, as subordinate to the Tribunal, to carry out the said order. Any breach or default would amount to dereliction of duty and refusal to perform the duty cast upon it, as public officer. Therefore, the petitioner has prayed that the customs authority be directed to act in accordance with law and discharge its normal function. It is not in the form of an execution but a direction upon the authority to discharge its public duty. He further contends that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. He points out that the goods are prohibited; even if the same are not altogether prohibited, but the same are permitted to be imported on a special import licence and the goods do not conform to the licence or there is non-compliance of any condition of the licence under which those are imported or if there is no special import licence, the same equally becomes prohibited item. Therefore, it cannot be released in any way. He further contends that in the present case, the reference may take a longer time, but the goods cannot be released in view of the situation that the goods, which are liable to be confiscated, if released, the same cannot be recovered subsequently. Therefore, this writ petition should be dismissed. Reply on behalf of the Petitioner : 4.The learned Counsel for the petitioner, Mr. Talukdar, in reply, points out to the remedy as provided under Section 143 of the Customs Act under which such goods can be released on execution of Bonds. Under Section 125 of the 1962 Act order of redemption can be passed in respect of goods, which are prohibited, at the discretion of the customs authorities, and which are non-prohibited, at the option of the importer. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a case it comes within the exception provided in Section 2(33). In this case, there is no material to show that the goods imported are prohibited goods. 5.2Therefore, even if it is taken as prohibited goods, still then, the customs authorities have the power to allow redemption at its discretion under Section 125 of the customs act. This is further fortified by reason of the order passed by the customs Authorities on August 9, 1996, where redemption was allowed on payment of Rs. 3 lakhs and a fine of Rs. 50,000/-. Therefore, there cannot be any objection in the matter of redemption of the goods, if a Bond is executed for the purpose in terms of Section 143 of the Customs Act. Therefore, Mr. Banerjee's contention that the goods cannot be redeemed, does not seem to be of any substance. Section 143 : Rule 41 : How far efficacious : Can writ petition be maintained? : 6.Alternatively, Mr. Banerjee contended that in such event the goods can be released in terms of Section 143 of the Customs Act through a process under Rule 41 of the Rules. Therefore, the writ petition cannot be maintained. The answer is simple. Rule 41 provides that the Tribunal may make such orders or give s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to a matter decided by the Tribunal. On an application being made, the Tribunal may state the case to the High Court referring any question of law arising out of such order. In case the Tribunal refuses to state, as in this case, then the party has a right to apply before the High Court. If such an application is made, the High Court, if not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and refer to it. Thereupon, the Tribunal shall state the case and refer the same accordingly. The scope of reference is confined to answer the question of law referred to it. The decision by the Court is an opinion with regard to the question of law referred to it. As we find from Section 130C, after such opinion is delivered through a judgment, the question of law raised therein, the Tribunal shall pass appropriate order as are necessary to dispose of the case in conformity with such judgment being the opinion of the High Court. 7.1Thus, the jurisdiction of the High Court on a reference is confined only to a decision on a question of law raised and which is supposed to be an opinion of the High Court. It neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petition has been entertained, it will be inappropriate and improper to send the matter back to the Tribunal. In view of the position in law, there cannot be any ground to refuse to redeem or to deliver the goods. 7.3The provisions of reference provided under the Income-tax Act are almost identical with that of Section 130 of the Customs Act. Therefore, the principle laid down in the case of Commissioner of Income-tax, Delhi and Others v. Bansi Dhar and Sons and Others reported in 1986 (24) E.L.T. 193 (S.C.) applies in full force in the present case. Similarly, the ratio decided in the case of Sardar Gurucharan Singh v. Collector of Customs reported in 1992 (59) E.L.T. 355 (Cal.) applies in full force in the present case because in this decision, the facts were almost identical. Conclusion : 8.For all these reasons, it appears that there is no justification in withholding the release of the goods. However, as rightly contended by Mr. Banerjee, in case the reference succeeds, then how the duty could be recovered or how the confiscation could be effected! In the circumstances, the duty or other revenue has to be secured. Section 143 read with Section 125 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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