A reference can be filed by an aggrieved party against the order of Appellate Tribunal within a period of 90 days from the receipt of the Tribunal's order, and in terms of section 196 of the Customs Act, a remedy of reference is available to question an adverse order by bringing out a question of law emanating from the order of the last forum. The reference can be filed before a High Court on a framed question of law arising out of Appellate Tribunal's order and such a reference is to be filed in the form of a statement, which will be heard by a bench of two judges who are required to determine the question of law posed in the reference.
The statement to be filed before the Court is required to state the facts of the case, the determinations of the appellate tribunal and the framed questions of law emanating from the order of the Tribunal. The parties to the dispute are required to keep in mind that proposed question of law should conform to the terms of the provisions of the Customs Act, 1969 for determination by the Court.
Mere filing of the reference will not modify or change the status of the Tribunal's order and the duty is payable in accordance with the orders of the Appellate Tribunal. It is notable, where a case has been remanded by the Tribunal, no question of law arises by the order of the appellate tribunal as no adverse order remains in the field, hence a party cannot be treated as an aggrieved party and there remains nothing to be decided by a High Court.
The real objects of providing such a remedy are the following:
(a) The remedy is restricted only to a question of law:
(b) Such a question must emanate, spring out, originate and stem out from the proceedings of the Appellate Tribunal and it must relate to the order passed by the tribunal.
(c) Where a legal question be that of jurisdiction of the forum below or of appellate tribunal, it requires to be agitated before the relevant forum and for analysis it must emerge from the order , where the situation is not like that there is no question of law involved;
(d) A litigant must keep in mind that the scope of the reference is limited only to a question of law and that it must arise out of the order of the tribunal.
(e) No issue other than the mandate given by the law can be considered.
(f) The scope of the reference is limited only to a question of law, the question of law must arise from the order of the tribunal, the question of law must have been raised in the earlier proceedings, where such a question was raised and not decided by the tribunal, then it becomes a question of law, the findings recorded by the tribunal unless perverse or erroneous in fact and law may not be interfered by the higher forum.
It may be noted that within the framework of section 196 of the Customs Act,1969, no appeal or reference lies before a High Court on a question of fact even where there is a disputed question of fact, the higher forum will not interfere, for example, whether or not a consignment corresponds to its specifications is a question of fact and whether or not the exact year of manufacture of a vehicle is also a question of fact; accordingly, one has to distinguish between the issues relating to facts and issues relating to law. Where a party has not raised a plea before the lower forums and the issue does not emanate from the order of the tribunal, the courts usually do not like to interfere in such matters.
One has to consider the words of statute, the phrase used in section 196 of the statute states that the question of law must arise out of the order of the Tribunal, that means it does have a nexus with impugned judgement of the tribunal and where there is no nexus court may refuse to interfere in terms of the dictates of law.
The higher forums in their judgements have considered the following to qualify as the question of law:
(i) Question argued before the tribunal on which finding has been given by the tribunal;
(ii) Questions argued before the tribunal and no finding has been given by the Tribunal;
(iii) The question never argued but has been decided by the Tribunal.
The following have not been considered as questions of law:
(a) Where required notice under the law was given within time, no question of law arose in the matter.
(b) Time barred reference is neither maintainable nor it involves any question of law.
Wither a reference has been filed after the expiry of time the same is not maintainable.
From what has been stated above it is clean that for a reference under section 196 of the Customs Act, 1969, the required consideration are:
(i) A dispute between the parties.
(ii) The dispute is decided by the Customs Appellate Tribunal.
(iii) A question of law is framed which springs out from the order of the tribunal.
(iv) The reference is filed within time prescribed by the law.
Where above stated conditions are not present filing of the reference will be a futile exercise.
It is now evident that remedy by way of filing of a reference can only be opted where there exists a controversy which involves determination of a question of law which arises from the order of the Appellate Tribunal. It has already been discussed what constitute the relevant questions of law and where a reference fails to bring out any question of law the same is not maintainable. The reference should be filed within time limit and it must correspond to the procedural requirements as laid down in the Customs Law.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi)
Copyright Business Recorder, 2017