1989 (10) TMI 122 - AT - Central Excise

Summary

Issues Involved:
1. Confiscation of gold ornaments and primary gold.
2. Validity of expert opinions on the nature of the gold items.
3. Examination of wealth-tax returns and affidavits as evidence.
4. Determination of whether gold mohars and Swastik coin are primary gold or gold articles.

Issue-wise Detailed Analysis:

1. Confiscation of Gold Ornaments and Primary Gold:

The appeal challenges the order of the Collector of Customs & Central Excise, Chandigarh, which ordered the confiscation of various gold items under the Gold (Control) Act, 1968. The appellant was found in possession of 3.0118 Kgs of primary gold, allegedly in crude form, and 197 grams of gold articles in excess, violating Sections 8(1)(i) and 16 of the Act. The Collector's order included the absolute confiscation of primary gold and a penalty of Rs. 10,000, while some items were allowed to be redeemed on payment of a fine.

2. Validity of Expert Opinions on the Nature of the Gold Items:

The appellant contested the Collector's conclusions, arguing that they were based on visual inspection rather than independent evidence. Expert opinions from Shri Madan Lal and Shri Tarsem Lal stated that the gold items were ornaments commonly used in Punjab, contradicting the Collector's findings. The Tribunal noted that the Collector did not adequately consider these expert testimonies and relied heavily on personal visual inspection, which was insufficient for determining the nature of the gold items.

3. Examination of Wealth-Tax Returns and Affidavits as Evidence:

The appellant presented wealth-tax returns and affidavits from family members to support the claim that the gold items belonged to various family members and were not primary gold. The Tribunal found that the Collector dismissed these documents without proper examination. The wealth-tax returns indicated ownership of substantial amounts of gold, and the affidavits provided prima facie evidence of shared ownership among family members. The Tribunal emphasized that these pieces of evidence should have been given due consideration.

4. Determination of Whether Gold Mohars and Swastik Coin are Primary Gold or Gold Articles:

The Tribunal referred to a previous decision (1987 (31) E.L.T. 813) which classified gold mohars and habib coins as "gold articles" rather than primary gold or ornaments. The Collector's conclusion that the gold mohars and Swastik coin were primary gold was found to be unsupported by specific evidence or detailed reasoning. The Tribunal held that these items should be classified as gold articles under Section 2(b) of the Gold (Control) Act, 1968, and thus not liable to confiscation.

Conclusion:

The Tribunal set aside the Collector's order, concluding that the 87 bangles, 2 pairs of gold bangles, and one pair of gold karas were gold ornaments, not primary gold. It also determined that the gold mohars and Swastik coin were gold articles, not subject to confiscation. The appeal was allowed, and the confiscation order was reversed.