1992 (9) TMI 213

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..... If a show cause notice was issued to them, the omission would have been brought to the notice of the Tribunal. 2. According to the applicant Company the following questions of law should also have been referred to the Hon'ble High Court, Calcutta : (i) Whether the ITC Public Notice No. 122-17C(PN)88-91, dated 28-4-1989, issued by the Collector of Customs, Calcutta, and the ITC Order No. 52/89 dated 28-4-1989, passed under Section 3 of the Import & Export (Control) Act, 1947, issued by the Chief Controller of Import & Export, Delhi under Import Policy for the period, 1988-1990, would apply to the transaction, like 'payment was made and agreement finalised; under the Import Policy for the period 1985-1988, even if the Import is found ....

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....at view of the matter, the learned Counsel, Shri Singh contended that the questions raised above are relevant to be referred to the Hon'ble High Court, Calcutta. 4. Heard Shri B.B. Sarkar, learned J.D.R. 5. The point that arises for our determination is whether the applicants have a right to require the Tribunal to refer certain questions of law to the Hon'ble High Court. In the first instance, the above-said questions do not arise out of the order of this Tribunal. It is for the respondent who is the Collector of Customs, Calcutta, to specify the questions of law arising out of the order of this Tribunal. As per the questions which are enumerated by the Collector the Tribunal considered the same in Order Nos. RA-246 to 250/Cal/92 dat....

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....cases, be permitted by the appellate tribunal, to raise further questions of law at the hearing of the reference application. But in every case, it is only the party applying for a reference who is entitled to specify the questions of law which should be referred. Nowhere in the statute there is any right of the non-applicant to ask for a reference of questions of law on the application made by the applicant. 1972-Tax LR 673 (Ker.), Reversed (1970) 75 ITR 93 (Mad.), (1970) 77 ITR 276 (Mad.), AIR 1964 Raj 59, (1968) 70-ITR-194 (Guj.), (1968) 70-ITR-203 (Guj.) and I.T. Ref. No. 20 of 1950 dated 10-10-1950 (Mad.), overruled." 8. A perusal of this decision goes to show that it is only a party for applying a reference, who is entitled to spec....

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....eferred. These are the principles laid .down by the Supreme Court in the decision reported in AIR-1980 SC 769. In this case, the question of Res judicata was not at all pleaded when the appeals were heard and no such question was raised before this Tribunal. The question which was raised for referring such a point of law to the High Court, does not arise at this stage, as the same does not arise out of the order of this Tribunal. This being the position in law as enunciated by the Honourable Supreme Court, I dismiss the Miscellaneous Application filed by the applicants in this case. 11. [Assent per : K. Sankararaman, Member (T)]. - While agreeing with the proposed order of my learned Brother I would like to add the following, to place th....