' Present Custom Reference has been filed against judgment of the learned Customs Appellate Tribunal, Bench-II, Lahore dated 21.05 2013, whereby the learned Customs Appellate Tribunal has set aside the orders passed by the Collector of Customs (Appeals) Lahore camp at Multan and also set aside the order in original dated 25.02.2012 on the ground that the 3rd test report obtained on the order of the Tribunal states:--- "In view of the attached test report and enclosed sample of the fabric, it is impossible to determine the origin of this fabric based only on the fabric specification and chemical analysis.
This fabric sample is a dyed woven fabric using 100% polyester multi filament yarns. Such a fabric can made anywhere in the world including Pakistan. In my humble opinion, it is not possible to judge whether this fabric was produced in Pakistan or elsewhere."
' On the basis of the said report it was held by the Tribunal that the seized cloth can be prepared/made in Pakistan.
2. Facts leading to the filing of the present reference are that respondent-department intercepted truck container and seized foreign origin cloth as the driver of the vehicle could not produce the legal import documents of the said cloth. Show-cause notice was issued which was replied and on the basis of 1st Lab report which was obtained at the back of the owner decided the same against the respondent No, 2 vide order dated 25.2.2012. Against the said order an appeal was filed which too was decided against respondent No,
2. Against the said order, 2nd appeal was filed before the Customs Appellate Tribunal Bench-II, Lahore who accepted the same vide order dated 21.5.2013.
Against which present Reference has been filed.
3. Learned counsel has filed the present Reference and raised certain question as mentioned in his reference, however, on Court query learned counsel submits that the following question arises out of the order of the Tribunal.
(e) Whether the burden of proof that lies upon the owner of the seized Cloth under Section 18' of the Customs Act. 1969 can be shifted transferred upon the prosecution/Detecting Agency?
(g) Whether the seized cloth being notified goods under Section 2(s), Section 16 of the Customs Act, 1969 attracting the provisions of the Section 156(1) (89) ibid can be released in the presence of the expert opinion of National Textile University of Faisalabad and Textile Institute of Pakistan which did not determine the origin of cloth as local give rise to the reasonable suspicion that the said fabric is smuggled one?
4. The questions referred by the learned counsel for the petitioner are questions of facts whereas under the law only questions of law arises out of the order of the Tribunal can be entertained. Under Section 196 of the Customs Act, which read as under:---
196. Reference to High Court.-- (1) Within ninety days of the date on which the aggrieved person or Collector for Director of Intelligence and Investigation], as the case may be, was served with order of the Appellate Tribunal under sub-section (3) of Section 194B, the aggrieved person or any officer of Customs not below the rank of an Additional Collector for Additional Director], authorized by the Collector for Director in writing], may prefer an application, in the prescribed form alongwith a statement of the case, to the High Court, stating any question of law arising out of such order.]
(2) The statement to the High Court, referred to in sub-section (1), shall set out the facts, the determination of the Appellate Tribunal and the question of law, which arises out of such order.
(3) Where, on an application made under sub-section (1), the High Court is satisfied that a question of law arises out of the order, referred to in sub-section (1), it may proceed to hear the case."
5. From the bare perusal of the above, it is crystal clear that this Court can entertain only questions of law which arises out of the orders of the learned Appellate Tribunal.
6. The order of the Tribunal is based on 3rd lab report, the questions raised are factual in nature and do -tot arise out of the order of the Tribunal, therefore cannot be entertained by this Court.
7. In view of the above, the present Customs Reference is dismissed in limine as no question of law has been raised in the said reference which arises out of the orders of the learned Tribunal dated 21.5.2013.
Custom .