The CESTAT has the authority to impose penalties under Section 112 of the Customs Act, and its findings of fact are binding unless shown to be perverse.

JUDGMENT :

(Bhargav D. KARIA, J.) :

1. Heard learned advocate Mr. Chetan Pandya for the applicant and learned advocate Mr. Deepak Khanchandani for the respondent.

2. This reference application is filed under section 130A of the Customs Act,1962 [for short ‘the Act’] challenging the order dated 25.06.2003 passed by the Custom Excise and Service Tax Appellate Tribunal, New Delhi [‘CESTAT’ for short] in Appeal No. C/471-492/2000 so far as the applicant is concerned.

3. This Court passed the following order on 21.09.2007:

“Heard learned counsel for the appellant.

The CECGA is admitted in terms of the following substantial question of law.

“Whether imposition of penalty on the appellant by the Appellate Tribunal is justified?”

Issue notice to the respondent. Paper book be filed within three months. List the appeal for final hearing after three months.”

4. As per section 130A of the Act, the Principal Commissioner of Custom, Commissioner of Custom 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 of the Act passed before 1st day of July,2003, by application in prescribed form, accompanied with application made by the other party by a fee, 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.

5. As the CESTAT has passed the order on 25.06.2003 i.e. prior to 1st July, 2003, applicant-one of the co-noticee has preferred this application under section 130A of the Act.

6. Sub-section (4) of section 130A of the Act provides that if on an application made under sub-section (1), the High Court directs the appellate Tribunal to refer the question of law raised in the application the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of case and refer it to the High Court.

7. In the facts of the case this Court passed the aforesaid order of admitting the application on the question of law treating the same appeal under section 130 of the Act and therefore, it appears that the application has remained pending since then.

8. We, therefore, have to decide as to whether any question of law arises from the impugned order as provided under subsection (4) of section 130A the Act as this is not an appeal under section 130 of the Act.

9. At the outset, learned advocates for both the sides have drawn our attention to the order dated 02.08.2017 passed by the Hon’ble Supreme Court of India passed in Civil Appeal No. 10347-10392/2011 preferred by the Commissioner of Customs (Adjudication), Mumbai, respondent herein against M/s. R.K. International and others wherein the impugned order 25.06.2003 passed by the CESTAT was challenged. The Hon’ble Supreme Court by the aforesaid order dismissed the Civil Appeals confirming the order dated 25.06.203 as under:

“1. Heard learned counsel for the parties and perused the relevant material.

2. The appellant, Commissioner of Customs (Adjudication), Mumbai had set the law into motion by issuing a show cause notice dated 13.12.1994 alleging that in respect of consignment imported into the country under Bill of Entry No. F- 4316 there was a mis-declaration of the imported goods by the importer - M/s. Ram Metal Industries. There were three addendas to the aforesaid show cause notice, dated 23.04.1998, 15.05.1998 and 25.08.1998 In the aforesaid show cause notice similar allegations were levelled with regard to import by two other entities i.e M/s. Natraj Metals and M/s. R.K International under Bill of Entry Nos. F4120 and 3058 dated 21.07.1993 and 04.06.1993 respectively. It was further alleged in the show cause notice st of that the importers mentioned in the Bill of Entry were mere namelenders and not the real persons who had made the imports. Accordingly, confiscation of the goods was proposed along with levy of penalty and the duty payable. This was notwithstanding the fact that th