( 1 ) AS there was difference of opinion amongst the members constituting the Tribunal we think it appropriate to call upon the Customs, Excise and Gold (Control) Appellate Tribunal to draw up a statement of the case with regard to the following question and refer the same to this Court : "whether the provisions of Section 123 of the Customs Act, 1962 could be invoked against the applicant when the alleged 5 pieces of gold were not recovered in the presence of the applicant or from his possession, custody or control. " .