Per Shri P.C. Jain:

I have heard both sides.

2. A preliminary point has been raised by the ld. advocate, Shri D.N. Bhowmick that E.A.6 form mentions 11.8.97 as the date of receipt of the Tribunal's Order (see item 6 of E.A.6). That being so, the R.A. should have been filed by 10th October, 1997. But it has been filed on 24.11.97, even beyond the period of 30 days after the limitation of 60 days which could be extended by the Tribunal. Hence the Reference Application is liable to be rejected on this short ground itself as barred by time.

3. Ld. JDR, Shri R.K. Roy, however, points out that the impugned order of the Tribunal was sent by the Assistant Registrar on 19.9.97, as indicated from the forwarding letter of the said order. He further submits that receipt date of the order in Commissioner's Office is 22.9.97. Keeping that date in view, 21.11.97 was the last date for filing the Reference Application. He submits that the Commissioner has verified the Reference Application on 19.11.97. The 21st November 1997 was Friday. Then two holidays intervened. There is thus a delay of only one day in effect. He makes an oral prayer for condoning the said delay. Ld. advocate for the respondent has no objection. Having regard to the aforesaid facts and circumstances, I condone the delay. Commissioner (Preventive) should, however, be more careful in filing the EA-6 form in future.

4. On merits, I observe that the question of law as raised in the R.A. namely, "Whether Hon'ble CEGAT, Calcutta is correct in setting aside the penalty imposed on Shri Ram Avtar Banka, order passed by original adjudicating authority under Section 112 (b) of the Customs Act" is not at all a question of law. "Grounds of Appeal" attached to R.A. shows that the Commissioner has misconceived the scope of R.A.. Ld. advocates reliance regarding W.R.B.'s strictures on a Commissioner in 1993 (68) ELT 464 is very apposite. It pains me to observe that such senior officers have such wrong conception of the law they are administering. Lack of proper conception un-necessarily spawns litigation leading to harassment of the public/assessee.

5. I also observe that, as rightly pointed out by the ld. advocate for the respondent, Tribunal has set aside penalty on the respondent herein on appreciation of evidence. No question of law arises out of appreciation of evidence or in-sufficiency of evidence as pointed out by him citing the Bench judgement 1997 (23) RLT 67 = 1997 (96) ELT 658 (Trib.) which in turn relies on 1986 (159) ITR 78 (S.C.). No question of law has been raised in this case. Hence the Reference Application is rejected.