TaxTMI 
TaxTMI 
1993 (7) TMI 211
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....Bench's aforesaid order, and that they be referred to the High Court. 1.3 C/Misc-60/93-Bom and C/Misc-61/93-Bom have also been filed by the Respondents, submitting that they have already approached the departmental authority, with a declaration that they were exercising option of payment of fine in lieu of confiscation as has been ordered by this Bench vide impugned order, but the Departmental authority has been evading complying with the same, and that therefore, a direction be issued to them to forthwith comply with the same. 1.4 The applicants have filed C/Misc-78/93 and C/Misc-79/93 seeking permission to add one more paragraph in the grounds for reference, and also to add one more question in the questions on which a reference to the High Court is sought. 2. As both the applications for reference and the miscellaneous applications, as also Cross Objections for reference arise out of the common order passed by this Bench, all are heard together and are being disposed of by this common order. 3.1 To give a brief resume of the events which have culminated into the present proceedings, both the Respondents here, arrived from Dubai, as passengers on 3....
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....e in lieu of confiscation. Foreign currency was also ordered release. 4.1 Considering first, two miscellaneous Applications No. C/Misc-78/93-Bom and C/Misc-79/93-Bom, the applicants have sought amendment to add one paragraph in the grounds, and one more question for reference. 4.2 Moving the said applications, Mr. Mondal, the ld. SDR, has submitted that the grounds sought to be raised and consequential question formulated arise out of the order of the Bench, and the issue is purely one of law, and hence there could be no bar in raising the said plea at the stage of hearing of the applications. In his submission, even the Tribunal has powers, not only to reconstruct the questions, but to add or alter the same, and that therefore, the applicants should also not be denied the benefit of formulating additional question. 4.3 Mr. Sunder Rajan, the ld. Consultant has opposed the same, and has pleaded that the proposed amendment and the question sought to be added are entirely different from what the applicants have initially contended, and by seeking amendment they want to alter the entire pleadings. He also pleads that such an application ought to have come within....
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.... order of any superior authority. (B) Whether in the facts and circumstances of this case, it was open to the Hon'ble Tribunal to uphold part of the penalty when the Counsel for the appellant has specifically referred to and relied upon the decision of this Hon'ble Tribunal in the matter of Sh. Balbir Singh v. Collector of Customs reported in 1991 (56) E.L.T. 64, wherein it has been held that unless the specific clause of Section 112 is invoked, the penalty proceedings are not valid. (C) Whether in the facts and circumstances of this case, it was proper for the adjudicating authority and this Hon'ble Tribunal to rely on the statement of the applicant, which was obtained under threats and coercion and the same was retracted at the first opportunity and the Department had not denied the retraction. (D) Whether in the facts and circumstances of this case, when the passenger was yet to clear out of the Customs Area and his baggage was subject to screening prior to declaration, it could be held that the applicant herein had attempted to smuggle the gold. (E) Whether in the facts and circumstances of this case, it was open to the adjudicating authority to hold that the applic....
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....t said Mr. Kutty has been accepted as the owner. In his submission, with the clear finding that the gold seized is not the bona fide personal baggage of the Respondents, they would not be eligible to get any protection or privilege under the Baggage Rules, and the Bench has therefore, rightly held the gold as liable to confiscation under Section 111(d) of the Customs Act. In his submission, any relief in the nature of granting, option to pay fine in lieu of confiscation, therefore, could flow only from the provisions contained in Section 125 of the Act and going by the said provisions, it could only be the owner of the goods to whom such option could be extended, and with the owner already disclosed and known, the Respondents who are accepted as mere carriers, are not eligible to get the benefit of said provision, and as such the order of the Bench, appears to be going contrary to the statutory provisions, and the same therefore, gives rise to an issue of law. It is also his submission that when the benefit under the Baggage Rules is held as not available, as the gold is held to be not the bona fide personal baggage, the rate of duty applicable would not be the one prescribed under....
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....so, only because similar question is already answered by the High Court, and that the reference thereon need not be denied. 8.1 Considering the submissions made, and going through the order passed by this Bench, it is clear that this Bench has given a categorical finding that the Respondents were mere carriers of gold and that the same were not their personal effects. What however has weighed with the Bench is that with liberalisation in policy for import of gold, and when they were paying the duty in foreign currency, the benefit of liberalised policy need not be denied to them. 8.2 The question that however now poised, is, with the confiscation ordered under Section 111(d) of the Act, where the provisions of Section 125 would stand attracted, could the option be given to the person who is held to be not the owner and when the owner is disclosed but has not come forward to claim the same. 8.3 Going by the findings as given in the impugned order, the plea of ownership advanced by the Respondents has been negatived by the adjudicating authority as also by the Tribunal, and as such, the contention that as the importers, the Respondents be deemed to be owners a....
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....e the duty according to law. It may however be observed that this Bench has already observed in the order that the gold is not a bona fide personal belonging of the Respondents. 9.3 The question at S. No (i) in any case, cannot be said to be arising out of the order of this Bench, so as to fall within the ambit of Section 130 of the Act, and hence cannot be referred to the High Court. 10.1 The Respondents have also formulated certain questions but have requested for reference only in relation to some of them, as already mentioned hereinabove. 10.2.1 For question No. B which pertains to non-mention of clause (a) or (b) of the Section 112 of the Customs Act, 1962, in the order passed, imposing penalty, the ld. Consultant has referred to the decision of the Tribunal in Balvir Singh v. Collector - 1991 (56) E.L.T. 64 (Tribunal). 10.2.2 The ratio of the decision cited as also the judgments referred to in the said decision, is that the person who is being penalised ought to know under what provision the penalty has been imposed. There can be no difference in thinking in relation thereto. However, the approach of this Bench has been that if the allegations ....