Reference to High Court

Appellate Tribunal is final forum for determination of facts, which cannot be reappraised by High Court unless findings are perverse or give rise to question of law

Question of law does not involve reappraisal of evidence or factual inquiry

High Court cannot undertake unfettered inquiry into facts already determined by Tribunal

In present case, no question of law arose, and matter had been correctly decided by Appellate Tribunal on facts

High Court declined to interfere

References filed by Department were dismissed in limine.

Petitioner/tax-payer was aggrieved of order passed by High Court on tax reference of authorities, which was filed beyond the time frame given by office of High Court

Validity

If objections raised by office of High Court were not removed within the time specified by the office and in the meantime limitation for filing appeal stood expired, such appeal would be rendered as time barred

Limitation is not a mere technicality, as once limitation expires a vested right is created in favour of other side by operation of law which cannot be taken away lightly

High Court had passed the order on merits of the case but failed to discuss averments of application with regard to limitation by specifying whether the same was allowed or rejected

High Court should have decided such objection of limitation as a preliminary issue

Supreme Court set aside the order passed by High Court and remanded the matter for decision afresh on application for condonation of delay

Petition for leave to appeal was disposed of.

Petitioner/tax-payer was aggrieved of order passed by High Court on tax reference of authorities, which was filed beyond the time frame given by office of High Court

Validity

If objections raised by office of High Court were not removed within the time specified by the office and in the meantime limitation for filing appeal stood expired, such appeal would be rendered as time barred

Limitation is not a mere technicality, as once limitation expires a vested right is created in favour of other side by operation of law which cannot be taken away lightly

High Court had passed the order on merits of the case but failed to discuss averments of application with regard to limitation by specifying whether the same was allowed or rejected

High Court should have decided such objection of limitation as a preliminary issue

Supreme Court set aside the order passed by High Court and remanded the matter for decision afresh on application for condonation of delay

Petition for leave to appeal was disposed of.

No tax Reference under S.67A of Punjab Sales Tax on Services Act, 2012 is maintainable against an order which is not required by law to be communicated by Appellate Tribunal.

Reference against a judgment or order of Appellate Tribunal can only be filed on a question of law.

Jurisdiction of the High Court under S.133 of the Income Tax Ordinance, 2001, is advisory in nature and the same can be exercised only on a proposition or question of law arising out of the decision passed by the Appellate Tribunal, which is the last fact-finding forum and as such, the High Court in reference jurisdiction cannot change the facts arrived by it.

High Court realized the shortcomings in the references of the Customs department, therefore, it took it upon itself to ascertain the nature of the vehicles

High Court's jurisdiction under section 196 of the Customs Act, 1969 was limited to a question of law, therefore, it did not lay within the jurisdictional domain of the High Court to itself determine the nature of the imported vehicles

If the High Court preferred any particular reports which were before it, and if it was setting aside the judgments of the Tribunal then it should have given valid reasons for its preference

However, the High Court should not have embarked upon determining the nature of the vehicles itself, and to do so by relying upon material which had not been produced either before the adjudicating officer or the Tribunal

Manner in which the High Court took upon itself to ascertain the nature of the imported vehicles could not be endorsed

Appeals were allowed by setting aside the impugned judgments of the High Court, with the direction that the subject vehicles be released immediately on payment of the applicable duties and taxes, if the same had not already been paid.

High Court realized the shortcomings in the references of the Customs department, therefore, it took it upon itself to ascertain the nature of the vehicles

High Court's jurisdiction under section 196 of the Customs Act, 1969 was limited to a question of law, therefore, it did not lay within the jurisdictional domain of the High Court to itself determine the nature of the imported vehicles

If the High Court preferred any particular reports which were before it, and if it was setting aside the judgments of the Tribunal then it should have given valid reasons for its preference

However, the High Court should not have embarked upon determining the nature of the vehicles itself, and to do so by relying upon material which had not been produced either before the adjudicating officer or the Tribunal

Manner in which the High Court took upon itself to ascertain the nature of the imported vehicles could not be endorsed

Appeals were allowed by setting aside the impugned judgments of the High Court, with the direction that the subject vehicles be released immediately on payment of the applicable duties and taxes, if the same had not already been paid.

Order in question was passed on 12-04-2022, certified copy was issued to authorities on 15-04-2022, whereas Reference application was filed on 07-07-2022

Effect

Sales Tax Reference was barred by 24 days

Object of law of limitation was to help the vigilant and not the indolent

Law of limitation was required to be construed strictly

Each day of delay was to be explained by the party concerned

Government department could not be treated differently than private individual on the question of limitation

Authorities failed to offer any plausible explanation for condonation of delay in their application

Negligence to file Sales Tax Reference must have its reward to punish the indolent

High Court declined to condone the delay in filing of Sales Tax Reference

Reference was dismissed, in circumstances.

Appellate Tribunal must independently decide the controversy before it and not approve the finding of Collector (Appeals) in a slipshod manner

As the last fact-finding forum, it is the Tribunal's duty to reach an independent decision after considering the contentions raised by the parties

High Court cannot approve a mere endorsement of Collector (Appeals) appellate order

If the Tribunal does not take relevant facts into consideration or deliberate on the reasons for or against the appeal, then it has not decided the appeal and any purported order or judgment would be a nullity in law

Therefore, if the Tribunal fails to address a question of law or fact raised before it or before any other forum under the relevant statute, it is treated as a question of law for the purposes of a reference application before the High Court.

Against the order of the Appellate Tribunal, any aggrieved party is entitled to file tax reference under S.133 of the Income Tax Ordinance, 2001, within 90 days of the communication of the impugned order

Taxpayer also has a right to file a rectification application against an error or mistake in the impugned order under S. 221 of Income Tax Ordinance, 2001

However, once the matter arising out of the order of Appellate Tribunal has been challenged by the applicant in the tax reference before the High Court and has attained finality, the applicant cannot be allowed to re-agitate the same matter by means of an alternative remedy that was not resorted to earlier

If this is allowed, this would go entirely contrary to 'doctrine of election' which exists to ensure that once a litigant has made the choice of pursuing a certain course of action available to him or has abandoned a certain plea/action, he is not allowed to re-open the same matter only because he has received unfavourable results in proceedings of his first choice.

Precise intent of remedy of reference provided under section 196 of the Customs Act, 1969 is to resolve and adjudicate only the question of law originating and stemming from the order passed by the Appellate Tribunal

High Court cannot embark upon factual aspects or controversy

High Court while exercising appellate jurisdiction under section 196 of the Customs Act, 1969 is not free to embark upon an unfettered inquiry into factual aspects which have been properly considered and decided by the Tribunal.

Precise intent of remedy of reference provided under section 196 of the Customs Act, 1969 is to resolve and adjudicate only the question of law originating and stemming from the order passed by the Appellate Tribunal

High Court cannot embark upon factual aspects or controversy

High Court while exercising appellate jurisdiction under section 196 of the Customs Act, 1969 is not free to embark upon an unfettered inquiry into factual aspects which have been properly considered and decided by the Tribunal.

Neither was it contended in the application for condonation of delay that the judgment was reserved or was kept in wait for orders or any effort was made to ascertain as to whether the judgment had been passed by Appellate Tribunal nor any register of Appellate Tribunal was produced to show that the copy of impugned judgment was not dispatched to the department

Presumption of correctness was attached to the judicial proceedings in terms of Art. 129(e) of the Qanun-e-Shahadat, 1984 and in order to displace the same, some evidence was required to be produced by the department along with application for condonation so as to make out a case for condonation of delay within the contemplation of provisions of S. 196(8) of the Customs Act, 1969, read with S. 5 of the Limitation Act, 1908

Reference application being time-barred was decided against the department.

High Court cannot disturb factual findings while exercising reference jurisdiction.

Reference application was filed against the order passed by Appellate Tribunal of Sindh Revenue Board on a rectification application

Questions proposed through the reference application had not arisen from the order of rectification and the same were subject matter of main order-in-appeal passed by the Appellate Tribunal

Applicant instead of filing reference application against the order-in-appeal in terms of S. 63 of Sindh Sales Tax on Services Act, 2011, had chosen to file rectification application

If the order of rectification was to be ignored and reference was considered to have been filed against the order-in-appeal of Appellate Tribunal then the reference application, on the face of it, was time barred

No explanation was given nor any condonation of delay was sought by the applicant

Reference application filed against order-in-appeal was dismissed in limine for being time barred.

Where objection regarding the age of vehicles was not raised in the show-cause notice or before any of the two forums below, High Court observed that question would not arise from the pleadings and/or proceedings below, as such, High Court refrained from answering the question in reference jurisdiction.

Various show cause notices were issued to the respondent demanding payment of duty and taxes on the re-importation of engines sent abroad for repairs

Department's stance was that the value of repair was not correctly declared at the time of re-import of engines, resulting in lesser payment of duty and taxes

Respondent's case was that during pendency of the proceedings they had availed amnesty scheme and had paid the duty and taxes as per the scheme; hence, no question of payment of any further amount arose

Validity

In terms of the amnesty scheme fine and penalty stood remitted, whereas, the duty and taxes so adjudicated stood paid

Department had accepted the request of the respondent to grant them benefit of the amnesty scheme after making payment of duty and taxes calculated by the respondent on its own

Department had no case so as to seek interference in the impugned order of the Appellate Tribunal

Reference applications were dismissed.

Article 199 of the Constitution cannot be invoked while deciding customs reference.

Applicant sought sixty days' time to approach the Supreme Court and in the meanwhile Income Tax Department be restrained from recovery of the tax, the request was made on the basis of referred precedents

Validity

Case of applicant was entirely distinguishable from said case laws and even no restraining order could be passed as it would amount to causing loss to the public revenue

Applications being devoid of merit were dismissed.

Question before High Court was whether reference under S.47 of Sales Tax Act, 1990 as it stood in the year 2007, could be filed by officer / person other than Additional Collector or officer authorized by Collector, when S.47 as it stood then, stated that such reference was only to be signed by officer not below the rank of Additional Collector, or officer authorized by Collector Sales Tax

Held, that wording of S.47 of Sales Tax Act, 1990, as it stood at the time of filing of reference in year 2007, was couched in negative language by use of phrase "not below rank of Additional Collector", which manifested intention of Legislature as mandatory and not merely directory

In the present case, no document was available to show that reference was filed either by Additional Collector or on direction of Collector Sales Tax, and therefore same was incompetently field and not maintainable

Reference was dismissed, in circumstances.

Question of law neither raised nor adjudicated upon Appellate Tribunal could not be raised before High Court under Section 133 of Income Tax Ordinance, 2001

Where a question of law arising out of an order of Appellate Tribunal was permissible to be raised, then same could also be answered provided it was based on undisputed / settled facts or its answer was not dependent upon determination of certain facts

Where such questions of fact had not been determined, then High Court could remand or refer matter to Appellate Tribunal for rehearing and deciding matter afresh as said forum was competent to decide questions of fact arising in a matter.

Respondent was granted Duty and Tax Remission for Export (DTRE) approval for import of certain goods for the purpose of manufacturing and exporting "Artificial Leather"

Department received information that the respondent had mis-appropriated the imported goods, which resulted in passing of order-in-original

Appellate Tribunal waived off the penalty imposed on the respondent

Validity

Appellate Tribunal, while considering that the contravention report was framed and order-in-original was passed much before the expiry of approved DTRE time period, had waived the penalty

Findings of facts recorded by Appellate Tribunal, unless found to be either perverse or contrary to record, could not be interfered with by the High Court while examining questions of law

Scope of Reference jurisdiction under the law was restricted to the extent of examining questions of law arising from order passed by Appellate Tribunal and it did not extend to deciding questions of facts or determination of disputed facts

Reference application was decided against the department.

Under S.133 of Income Tax Ordinance, 2001, only such questions of law may be referred to High Court, which arose out of order of Appellate Tribunal.

Where order of Appellate Tribunal was based on findings of facts, after detailed discussion, deliberation and interpretation of provisions of law and as such did not carry any mistake apparent on record, then same did not require any interference by High Court while exercising jurisdiction under S.34A of Federal Excise Act, 2005.

Jurisdiction to entertain reference under S.196 of Customs Act, 1969 after expiry of period of limitation meant that court had to apply its mind in considering such request for condonation of delay after going through the facts of a case

No general rule or precedent existed whereby delay must necessarily be condoned where Government interest or revenue was involved

Question of limitation was not merely one of technicalities; and rights accrued to a party due to limitation could not be snatched away without sufficient cause and lawful justification.

Dispute was with regard to order passed by Commissioner (Appeals) for re-assessment under S.122(2) of Income Tax Ordinance, 2001

Income Tax Appellate Tribunal set aside order passed by Commissioner (Appeals), as re-assessment was beyond limitation

Validity

Commissioner (Appeals) had no power or jurisdiction to indirectly extend statutory prescribed period of limitation provided under S.122(2) of Income Tax Ordinance, 2001, by remanding the issue of re-assessment of tax returns filed by a taxpayer (as deemed assessment) to the Commissioner beyond limitation period

Where an order was to sustainable in the eyes of law and flaw inflicting it was that it defeated rights under Art.10-A of the Constitution, of a taxpayer having been passed in perfunctory or mechanical fashion to meet statutory limitation deadline, remanding case back to Commissioner to defeat limitation period, tantamount to wanton abuse and disregard of Income Tax Ordinance, 2001

Such order of Commissioner (Appeals) suffered from mala fide in law and was liable to be set aside for being a fraud on the statute

Tax authorities failed to point out a question of law that High Court could adjudicate in exercise of its appellate jurisdiction under S.133 of Income Tax Ordinance, 2001

Reference was dismissed in circumstances.

Assessee entered into different agreements with certain companies based in United Kingdom and United States and in that behalf made payments to them but no withholding tax was deducted under S.50(3) of the Income Tax Ordinance, 1979

Stance of assessee was that the payments were covered by "Avoidance of Double Taxation Treaties executed between Pakistan, USA and UK"

Validity

All the fora below except the Taxation Officer had concluded that the entities with which the respondent had been dealing did not have permanent establishment in Pakistan, hence payments made were covered under the Treaty

High Court could not enter into the facts finding mission regarding the place of establishment of the parties with whom the respondent had been dealing

No question of law had arisen in the facts and circumstances of the case to be framed and answered by the High Court

Reference application by the department was dismissed.

After dismissal of his appeal before the Appellate Tribunal, the petitioner waited for eleven months to file the Customs Reference before the High Court, which was hopelessly barred by time

Application for condonation of delay stated that the entire process was followed up by a special attorney of the petitioner

Said special attorney was allegedly a chronic patient of some disease and was therefore unable to file the Reference within time

Petitioner was unable to explain plausibly why he did not pursue the matter himself and why was he not following up the same

Plea/explanation that petitioner was not available and his special attorney was unwell were neither convincing nor plausible and did not constitute sufficient grounds for condonation of delay for about eleven months

Petition for leave to appeal was dismissed and leave was refused.

After dismissal of his appeal before the Appellate Tribunal, the petitioner waited for eleven months to file the Customs Reference before the High Court, which was hopelessly barred by time

Application for condonation of delay stated that the entire process was followed up by a special attorney of the petitioner

Said special attorney was allegedly a chronic patient of some disease and was therefore unable to file the Reference within time

Petitioner was unable to explain plausibly why he did not pursue the matter himself and why was he not following up the same

Plea/explanation that petitioner was not available and his special attorney was unwell were neither convincing nor plausible and did not constitute sufficient grounds for condonation of delay for about eleven months

Petition for leave to appeal was dismissed and leave was refused.

Findings of fact by Appellate Tribunal could not be displaced by High Court in exercise of advisory jurisdiction under S.133 of Income Tax Ordinance, 2001.

Appeal filed by taxpayer before Commissioner Inland Revenue (Appeals) was accepted and that of department before Appellate Tribunal was dismissed

Validity

Appellate Tribunal had recorded findings of facts that due tax amount had already been paid and there was no tax liability, hence, imposition of penalty was not justified

Findings of facts recorded by Appellate Tribunal unless found to be either perverse or contrary to record, could not be interfered with by the High Court, while examining proposed questions of law under Reference Jurisdiction

Scope of reference jurisdiction under the law was restricted only to the extent of examining questions of law arising from order passed by Appellate Tribunal and it did not extend to deciding questions of facts or determination of disputed facts

High Court declined to exercise its advisory jurisdiction

Reference application was decided against the applicant department.

Department assailed the order passed by Appellate Tribunal whereby it had given the findings of fact that inflated/projected figures for obtaining Bank loan could not be considered as "definite information"

Held; applicant could not show that the impugned findings were perverse, contrary to record or suffered from any other legal infirmity or impropriety warranting interference in reference jurisdiction

High Court had to decide reference application in the exercise of its advisory jurisdiction on facts and circumstances founded by the Appellate Tribunal, which was the last fact finding forum

High Court could not change findings of facts arrived at by the Appellate Tribunal

Reference application was decided against the department.

Assessment of taxpayer for the assessment year 2001-2002 was finalized, however, it was charged to tax separately under Ss.80D & 80CC of the Income Tax Ordinance, 1979 on local and export sales, respectively

Appeal filed against such treatment was allowed by the Commissioner (Appeals)

Validity

Aggregate of the declared turnover as defined in S.80D, Income Tax Ordinance, 1979 from the sale of goods, rendering, giving or supplying services or benefits or execution of contracts had to be taken into account for determining the minimum tax liability of 0.5% of the turnover

If no tax, for whatever reason, was payable/paid then the amount worked out at the rate of 0.5% of the turnover would be the minimum tax payable

If the tax payable/paid was less than 0.5% of the turnover, then the minimum tax payable would be the difference/balance between the tax payable/paid and 0.5% of the turnover

Proposed question was answered in the affirmative and the reference application was decided against the applicant department.

Limitation provided under S. 221 of Income Tax Ordinance, 2001 was four years whereas limitation provided for filing reference application before High Court, under S.133, Income Tax Ordinance, 2001, was ninety days

If reference was allowed to be filed out of an order under S.221, Income Tax Ordinance, 2001, it could be misused for extending the period of limitation provided under S.133 of the Income Tax Ordinance, 2001

Yet, a person aggrieved by a change in order under S.132, Income Tax Ordinance, 2001, could not be deprived of the remedy provided under the Statute

Parameters provided by High Court for exercise of jurisdiction under S.133, Income Tax Ordinance, 2001, would apply with full force i.e., if any question of law arose out of the changed order, reference application, Reference would be maintainable

Reference application was decided against the department.

Department assailed order passed by Appellate Tribunal and submitted that Tribunal was not justified to delete levy of tax under S. 111 of Income Tax Ordinance, 2001

Validity

Appellate Tribunal had deleted the levy of tax after detailed scrutiny of facts and discussing merits of the case by invoking correct legal provisions and had categorically held that S. 111 of Income Tax Ordinance, 2001, was not attracted to the case

Facts were so obvious and clear that the department's point of view appeared to be an un-necessary effort

Deletion of levy was unexceptional

Reference application was decided against the applicant.

Applicant-department assailed the order of Appellate Tribunal wherein it had given findings of facts that the assessing authority had treated the credit entries appearing in the Bank accounts as business receipts/sales for the tax year; that it had failed to establish that the taxpayer had made any investment or was found to be the owner of money and that it had, without verification and examination of relevant record/balance sheet, hurriedly made the addition on presumption

Department could not show that the findings of facts were perverse, contrary to record or suffered from any other legal infirmity or impropriety warranting interference in Reference jurisdiction

High Court had to decide the reference application in the exercise of its advisory jurisdiction on facts and circumstances founded by the Appellate Tribunal, which was the last fact findings forum

High Court could not change findings of facts arrived at by the Appellate Tribunal

Reference application was decided against the department.

Appellate Tribunal had not determined the core issue whether HS Code of diaper was distinct and different from the HS Code of textile articles; and without giving clear finding held that the taxpayer was entitled to zero rating and had decided the matter through the impugned order

Material aspects of the matter were not dilated upon by the Appellate Tribunal, therefore, impugned order was not in confirmity with the provisions of S. 24-A of General Clauses Act, 1897

High Court set aside the impugned order and remanded the matter to the Appellate Tribunal for decision afresh through a speaking order.

Appellate Tribunal had observed that order-in-original was based on a defective notice bearing false figures of input tax never claimed by the registered person

High Court observed that only substantial legal questions could be examined, which had arisen from an order passed by Appellate Tribunal, questions requiring no interpretation of any provision of law, rules, regulations, or its application on undisputed facts of a case did not constitute a "question of law" to be decided by High Court under its reference jurisdiction

Reference application was decided against the applicant-department.

Only substantial legal questions can be examined which may arise from an order passed by the Appellate Tribunal whereas questions requiring no interpretation of any provision of law, rules or regulations or its application on undisputed facts of a case do not constitute a question of law to be decided by the High Court under its reference jurisdiction.

Department assailed order passed by Appellate Tribunal on the ground that it ignored the provisions of S.88A of Income Tax Ordinance, 2001 while holding that share from Association of Persons (AOP) was not liable to be charged in the hands of taxpayer

Validity

Appellate Tribunal, after appreciating the available record had endorsed the findings given by Commissioner of Inland Revenue (Appeals) whereby he had held that the taxpayer had filed its separate statement of final taxation based on separate audited accounts and that the taxpayer had 70% shares in the total receipts and expenses of AOP and on the basis of IAS-31, which was incorporated in the final accounts of the taxpayer, hence, there was no occasion for any proration as the same was never part of its income tax return

Concurrent findings of facts recorded by two appellate fora under the Income Tax Ordinance, 2001, unless found to be perverse and contrary to record, could not be interfered with by the High Court, while examining questions of law proposed under S. 133 of Income Tax Ordinance, 2001

Scope of Reference jurisdiction was restricted to the extent of examining questions of law arising from order passed by Appellate Tribunal and it did not extend to deciding questions of facts or determination of disputed facts

Only substantial legal questions could be examined, which arose from an order passed by the Appellate Tribunal, whereas questions requiring no interpretation of any provision of law, rules or regulations, or its application on undisputed facts of a case did not constitute a question of law to be decided by High Court

High Court declined to exercise its advisory jurisdiction

Reference application was decided against the applicant department.

Department assailed order of Appellate Tribunal whereby it had released the vehicle of respondent despite the prohibition contained in clause (b) of SRO No.499(I)/2009 dated; 13-06-2009

Validity

Appellate Tribunal had observed that no prima facie direct/adequate evidence was available to prove that the owner of vehicle/respondent was directly involved in smuggling

Vehicle could only be confiscated if it was involved wholly and exclusively in the use of transportation of smuggled goods whereas the facts showed that the vehicle was carrying about 20 passengers who were present in the vehicle and they (passengers) were allowed to leave when the goods and the vehicle was seized

Findings of the Appellate Tribunal that no prima facie direct/adequate evidence was available to prove the owner of vehicle was directly involved in smuggling of goods were findings of fact and the High Court had no jurisdiction to decide and set aside such findings in Reference proceedings

High Court only dealt with "question of law", which had not arisen out of the impugned order

High Court declined to exercise its advisory jurisdiction

Reference application was decided against the department.

Department assailed order of Appellate Tribunal whereby it had upheld the order of first appellate authority who had held the assessment order barred by time by holding that the delay could not be condoned on the ground that the assessing officer was under wrong impression that stay granted by High Court operated beyond six months

Validity

Only substantial legal questions arisen from order passed by Appellate Tribunal could be examined and questions requiring no interpretation of any provision of law, rules or regulations, or its application on undisputed facts of a case, did not constitute a "question of law" to be decided by High Court under the reference jurisdiction

High Court declined to exercise advisory jurisdiction as proposed question was not a "question of law"

Reference application was decided against the department.

Where rectification application is dismissed by Appellate Tribunal, the Reference application before High Court is not maintainable because the order of the Tribunal on such application does not merge into final order

Where the rectification application is allowed and the original order of the Tribunal is set aside then the said order will become part of the original order and reference application will be maintainable before High Court.

Assessing officer had allegedly acquired definite information in terms of S.122(8), Income Tax Ordinance, 2001 that the taxpayer had declared local sales which were offered under Final Tax Regime by wrongly availing benefit of Circular No. 20 of 1992 01-07-1992 and Circular No. 5 of 2000, dated 6-3-2000

Appellate Tribunal had given findings of facts that information of sale in the local market was duly available in the audited accounts of taxpayer and the statement so filed was as per audited accounts, thus, case of department did not qualify within the ambit of 'definite information'

Validity

Applicant could not show that the findings were perverse, contrary to record or suffered from any other legal infirmity or impropriety warranting interference in Reference jurisdiction

High Court had to decide reference application in the exercise of its advisory jurisdiction on facts and circumstances founded by the Appellate Tribunal, which was the last fact findings forum

High Court could not change findings of facts arrived at by the Appellate Tribunal

Reference application was decided against the department.

Where question of law raised in a reference under S.133 of Income Tax Ordinance, 1979 had already been settled by High Court in another case, and ratio decidendi of said case was squarely applicable on question of law proposed in a new reference, such reference could be disposed of in terms of the ratio decidendi of the already settled case.

Adjudicating officer issued show-cause notice on the ground that steel bars were oversized and not within the permissible limit of Import Policy Order

Importer, in terms of S.27-A, Customs Act, 1969, requested the Adjudicating Officer to allow mutilation and scrapping of oversized scrap, which was allowed

Contention of Department was that such request could have been entertained only before filing of the goods declaration

Validity

No time frame was given to an importer to make a request for mutilation or scrapping of the imported goods

Department could not point out as to how mens rea could be attributed to the importer by importing scrap, having oversized re-rollable steel bars which had admittedly lost tensile strength and could not be used as scrap for melting purposes

Provisions of S. 27-A, Customs Act, 1969 under the facts and the circumstances of the case were correctly interpreted and no factual discrepancy or legal error was apparent in the impugned judgment

Reference application was dismissed.

"Question of law" was a question which court was bound to answer in accordance with a rule of law and also meant a question as to what law was

Question of law could also be taken to mean what the law was on a particular point, which provision of law was applicable to a particular factual situation and what true rule of law was on a certain matter.

Question relating to fundamental rights enshrined in the Constitution cannot be agitated in Reference/advisory jurisdiction of High Court as the scope of advisory jurisdiction is limited to the extent of questions of law arising out of the order passed by Appellate Tribunal.

Legal proposition settled by the Supreme Court do not require determination by the High Court in Reference/advisory jurisdiction.