Per J.H. Joglekar :

Vide Order No. C-I/4019-24/WZB/2000 dated 9.1.2000, the Tribunal permitted redemption of gold for re-export on payment of fine of Rs. 10 lakhs which gold was seized from Yakub Yusuf and also reduced the penalty imposed upon him from Rs. 50 lakhs to Rs. 5 lakhs. The jurisdictional Customs Authorities, however, did not implement this order. The appellant then filed Misc application for direction being made for implementation of this order. The Tribunal vide order No. C.I/1995/WZB/2001 dated 1.8.2001, after hearing the counsel and on hearing the departmental representative that the offending goods have been disposed of, directed that the sale proceeds thereof should be handed over to the appellant after deduction of the quantum of fine where prescribed. When this order was not implemented, the appellant approached the Mumbai High Court, in Writ Petition No. 2376 of 2001. The High Court after hearing the appellant and the Revenue authorities ordered that in the absence of the department seeking an order of stay of operation of the Misc. order dated 30.7.01 the order shall be implemented. In terms of this direction, the Revenue filed Misc. application now under disposal on 19.10.2001 i.e. within a period of four weeks prescribed by the Hon'ble High Court to obtain an order from the Tribunal. It, however, seems that although this application was filed with the Registry, the factum of filing was not brought to the notice of the Bench by mention. Today, when the application came for consideration, Shri Kantawalla stated that the Revenue had failed to obtain order of stay of operation of the Misc. order within the period prescribed but fairly permitted the Revenue to make arguments on the said application.

2. Shri Sarkar reiterates the claim made in the application filed by the Revenue. Two grounds are made therein. One is that there is no basis in law for the Tribunal's direction for redemption for re-export and the second claim made is that a reference application has been made on the point of law arising out of the final order of the Tribunal and pending disposal of the reference application by the High Court, the operation of Misc. Order be stayed.

3. We have considered the submissions and also seen the text of the reference application and specifically the question caused therein for the consideration of the High Court. It appears that the authority in law in the Tribunal's order is not forming the part of the questions framed. We also note the consistent view taken by the Tribunal following the law laid down by the Calcutta High Court in the case of Sancheti Food Products Ltd. Vs. UOI, 1993 (67) E.L.T.248 (Cal.) that the fact of filing of reference application does not take away the authority of the judgment referred to the High Court. This view was further confirmed by the Division Bench of the Court in the case of UOI Vs. Sancheti Food Products Ltd., 1993 (68) ELT 341 (Cal). In this judgment, the High Court maintained that the filing of the reference application could not act as the stay of the operation of the order.

4. On perusal of the judgments, we do not find any grounds for staying the operation of the Misc. order. This application, is therefore, dismissed.