2009 (6) TMI 660 - HC - Customs

Search and seizure - whether in the matter of quantification of redemption fine, provisions of Section 73 of the Gold (Control) Act would apply even in a situation where Gold was neither seized nor confiscated under the provisions of Gold (Control) Act - in accordance with the provisions of Section 73 of Gold (Control) Act, the officer adjudging the quantum of fine is required to consider the market price of Gold as on the date of the seizure thereof which cannot exceed the value of the seized Gold in respect of which confiscation is authorized - with regard to the determination of the quantum of fine in lieu of confiscated Gold, it is held that the provisions of Section 73 of Gold (Control) Act and the sub-rule 8(a) of Rules, 1962 are inconsistent and in such a situation the provisions of Gold (Control) Act, 1968 will not apply in the instant case when the entire proceedings of seizure and confiscation of Gold were made under the provisions of Defence of India Rules, 1962 Once it is decided that in the matter of imposition of redemption fine, the provisions of Section 73 of erstwhile Gold (Control) Act, 1968 shall not apply then how can the definition of value as given in Section 2(v) of Gold (Control) Act can be imported in the instant case for adjudging the quantum of fine - Option is required to be given by the officer and before giving option, the amount of fine is required to be adjudged and this amount of fine, if the owner of the Gold opts to deposit in lieu of confiscated Gold, he can deposit or if he feels that he does not want to deposit, the Gold shall remain confiscated with the Government - the amount of fine when adjudged cannot be more than the market value of confiscated Gold at that point of time when the adjudging officer gives an option nor can it be much less than the market value of the Gold on that date - It appears that the Gold worth Rs. 2.5 crores in compliance of the above order must have been retained and the rest of the Gold might have been released to the respondent No. 1 - Petition is disposed of

Summary

Issues Involved:
1. Applicability of Section 73 of the Gold (Control) Act, 1968 in the imposition of redemption fine when the gold was neither seized nor confiscated under the Gold (Control) Act, 1968.
2. Determination of the quantum of redemption fine - whether it should be based on the market value of gold on the date of seizure or on the date of adjudication.

Detailed Analysis:

Issue 1: Applicability of Section 73 of the Gold (Control) Act, 1968
The court examined whether the provisions of Section 73 of the Gold (Control) Act, 1968, which prescribes a ceiling on the quantum of redemption fine with reference to the value at the time of seizure, apply in a situation where the gold was seized and confiscated under the Defence of India Rules, 1962, and not under the Gold (Control) Act, 1968.

The court noted that the seizure and confiscation of 240.040 kgs of gold occurred in June 1965 under the Defence of India Rules, 1962, before the Gold (Control) Act, 1968 came into force. The Defence of India Rules were repealed by the Gold (Control) Ordinance, which was later replaced by the Gold (Control) Act, 1968. Section 116 of the Gold (Control) Act, 1968, provides that actions taken under the Defence of India Rules, 1962, shall be deemed to have been done under the corresponding provisions of the Gold (Control) Act, as long as they are not inconsistent with the Act.

The court highlighted that Section 73 of the Gold (Control) Act, 1968, and Sub-rule 8(a) of Rule 126-M of the Defence of India Rules, 1962, are inconsistent regarding the determination of the quantum of fine. Section 73 limits the fine to the market value of the gold at the time of seizure, while Rule 126-M gives the adjudging officer discretion to determine the fine. Therefore, the court concluded that the provisions of Section 73 of the Gold (Control) Act, 1968, do not apply to the quantification of the redemption fine in this case.

Issue 2: Determination of the Quantum of Redemption Fine
The court then addressed whether the quantum of redemption fine should be based on the market value of gold on the date of seizure or on the date of adjudication. The respondent argued that the market value at the time of seizure should be considered, citing the fluctuating nature of gold prices. However, the court noted that once the provisions of the Gold (Control) Act, 1968, are deemed inapplicable, the determination of the fine must follow the Defence of India Rules, 1962.

Under Sub-rule 8(a) of Rule 126-M of the Defence of India Rules, 1962, the adjudging officer has the discretion to determine the fine. The court emphasized that the fine should be equivalent to the market value of the gold at the time the option to pay the fine in lieu of confiscation is given. The court stated that the relevant date for determining the market value is the date of adjudication when the option is given by the officer.

The court found that the Collector correctly applied the market price of gold at Rs. 4,600 per 10 grams as on December 7, 1994, the date of adjudication. This brought the total value of the seized gold to Rs. 11.04 crores, and the redemption fine could not be less than this amount. The court deemed the previously adjudged fine of Rs. 2.5 crores as arbitrary and irrational.

Conclusion:
The court concluded that the provisions of Section 73 of the Gold (Control) Act, 1968, do not apply to the quantification of the redemption fine in this case. The quantum of redemption fine should be based on the market value of gold on the date of adjudication, not the date of seizure. Consequently, the respondents are entitled to redeem the confiscated gold only after paying the redemption fine of Rs. 11.04 crores. The court directed the authorized officer to give an option afresh to the owner of the gold to pay the redemption fine in lieu of confiscation. Both the reference and the writ petition were disposed of accordingly.