Full Judgment
3. The department have come up with Reference Applications in both the cases urging certain questions to be referred to the High Court for consideration. On a perusal of the questions and after hearing Shri V.K. Puri, the ld. SDR and Shri H. R. Krishnamurthy, the ld. JDR, we find that these questions relate to the penalties imposed on the Respondents by the Collector. Both of us have concurred that penalties are not warranted in these cases but for different reasons recorded in our order. There was a difference of opinion between us as to whether for an act of omission and commission done by a foreign national in the foreign soil in respect of some goods, which have been imported into India attracting penal provisions under the Customs Act, a penalty could be imposed. While Member (Technical) took the view that the penalty could be imposed, Member (Judicial) took the opposite view. All the same, both of us agreed for different reasons that penalty cannot be imposed. Shri H.R. Krishnamurthy, the ld. JDR produced a copy of the Law Ministry's advice to plead that a penalty can be imposed on a foreigner. We looked into the advice. As seen from the opinion given by the Law Ministry, the question posed before them was whether a spinally can be imposed on a foreigner and the Law Ministry has given an opinion that it can be imposed under the Customs Act. We have no dispute on this. The question is be considered is whether in respect of goods shipped, certain acts commit! ed on a foreign soil by a foreign supplier resulting in the goods imported into India, attracting penal provisions under the Customs Act, a penalty can be imposed on such foreign supplier. This issue does not find discussion in the Law Ministry's advice. Be that as it may, we agree that the question whether a penalty on the foreign supplier in such circumstances could be imposed is a point of law and we are also eager to get an authoritative opinion from the High Court. However, in the present cases before us, both of us have concurred that penalties need not be imposed for different seasons. No reference has been made on the findings of Member (Technical) setting out the reasons as to why a penalty is not warned and those findings are based purely on appreciation of facts. When these factual findings are not challenged, they are to be operative. Hence, even if the Reference Application is allowed by the High Court in favour of Revenue, so long as the findings on factual appreciation discussed by Member (Technical) are not disturbed, penalties cannot be imposed. Hence the Reference becomes purely academic. No Reference can be made on getting clarification on an issue of academic interest. Hence we dismiss both the Reference Applications.