In the context of Section 130A of the Customs Act, no substantial question of law is required to be framed for a reference application, and there exists a distinction between a question of law and a substantial question of law.

ORDER :

1. Leave granted.

2. By reason of the impugned order dated 20.7.2004 a reference application, preferred by the appellant herein purported to be in terms of Section 130A of the Customs Act, had been dismissed by the High Court stating that no substantial question of law arose from the order of the tribunal.

3. Mr. S.B. Upadhyay, learned counsel appearing on behalf of the appellant draws our attention to the provisions of Section 130A of the Customs Act and contends that in terms thereof no substantial question of law is required to be framed and thus the High Court committed a manifest error in passing the impugned order.

4. Sub-sections (1) and (2) of Section 130 A of the Act read as under:

"(1) The Commissioner of Customs or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under Section 129B passed(before the 1st day of July, 2003) (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.

(2) The Commissioner of Customs or the other party applying to the High Court under Sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred.

5. On a bare perusal of the said provisions, it is apparent that whereas a reference is to be made on a question of law, the High Court upon receipt thereof is not required to frame any substantial question of law. It is no doubt true that in terms of Sub-section (2) of Section 130A of the Customs Act, it is for the party applying for reference to clearly state the question of law which he seeks to be referred to the High Court and then it is for the High Court to consider as to whether any such question of law stated in the application for reference before it, should be directed to be referred. Although, the application for reference is not before us, we may notice that the appellant herein filed an additional affidavit on 29.8.2003 wherein the following questions of law had been formulated for reference:

1. Whether the order of the Tribunal is per se illegal and the findings recorded therein qua the appellant are perverse and unsustainable?

II. Whether the findings purporting to inculpate the appellant are per se based on no evidence.

III. Whether the Tribunal was correct in confirming the order of the Respondent Commissioner which the applicant is not subject to the provisions of Section 111(j) and 112(a) of the Act?

IV. Whether Tribunal was correct in holding the order of the Respondent to be correct when there were no materials to establish the applicant's alleged involvement in removal of the CDs?

6. It, therefore, cannot be said that no question of law at all was framed. There exists a distinction between a question of law and a substantial question of law.

7. It must also be borne in mind that having regard to the provisions contained in Section 130A of the Customs Act, the High Court, unlike Section 100 of the Civil Procedure Code need frame a substantial question of law. Purport and object of the two Acts are distinct and different.

8. In this view of the matter, we set aside the impugned judgment and remit the matter back to the High Court for consideration of the matter afresh, leaving all the contentions of the parties open. The appeal is allowed. No costs.