2006 (4) TMI 167 - HC - Customs

Summary

Issues Involved:
1. Legality of the confiscation of gold under the Gold (Control) Act, 1968.
2. Consideration of the criminal court's findings by the Tribunal.
3. Applicability of the principles of natural justice.
4. Alternative remedy and maintainability of the writ petition.

Detailed Analysis:

1. Legality of the Confiscation of Gold:
The search conducted on the residential premises of the deceased on 25th March 1974 led to the discovery of primary gold. The gold was found hidden in various compartments of a wooden almirah. The seized items included 12 gold slabs, 13 gold rods, and 18 gold foils, collectively weighing 5395 grams. The Central Excise Collector ordered absolute confiscation of these items and imposed a penalty of Rs. 5 lakhs under Section 74 of the Gold (Control) Act, 1968. Upon appeal, the Gold (Control) Administrator set aside the order citing violation of natural justice and remanded the matter for fresh consideration. After remand, the Collector confirmed the confiscation but reduced the penalty to Rs. 2 lakhs. The Tribunal later reduced the penalty further to Rs. 30,000 but upheld the confiscation.

2. Consideration of the Criminal Court's Findings by the Tribunal:
The Chief Judicial Magistrate, in a judgment dated 12th/17th October 1979, held that the gold slabs and gold rods were not in the conscious possession of the accused, though the gold foils were. This distinction was crucial as possession under the Gold (Control) Act implies "conscious possession." The Tribunal, however, did not consider these findings while confirming the confiscation of the gold slabs and rods. The High Court emphasized that the Tribunal should have considered the criminal court's findings, especially since the basic facts, recovery of incriminating articles, witnesses, and charges were common in both proceedings.

3. Applicability of the Principles of Natural Justice:
The appellate authority initially set aside the confiscation order due to a violation of the principles of natural justice and remanded the case for fresh consideration. This highlights the importance of adhering to procedural fairness in administrative actions.

4. Alternative Remedy and Maintainability of the Writ Petition:
The revenue argued that the petitioners should have availed the alternative remedy of making a reference application under Section 82B(3) of the Gold (Control) Act. However, the High Court noted that the writ petition had been pending for over 17 years and that a similar writ petition had been admitted by the court. Given the prolonged delay and the lack of an alternative remedy, the High Court decided to entertain the writ petition.

Conclusion:
The High Court set aside the Tribunal's order dated 28th February 1986 and remanded the matter back to the Tribunal for fresh consideration in accordance with the law. The Tribunal was directed to consider the criminal court's findings and all other contentions raised by the parties. The petitioners were instructed to appear before the Tribunal on 22nd May 2006 for an expedited hearing. The High Court's decision underscores the necessity of considering judicial findings from related proceedings and ensuring procedural fairness in administrative actions.