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1992 (8) TMI 195 - AT - Central Excise
Issues:
- Appeal against order of Collector of Central Excise for confiscation and penalty under Gold (Control) Act, 1968. - Whether gold belonging to a third party is liable for confiscation under the Act. - Applicability of proviso to Section 71 of the Act. - Quantum of penalty under the repealed Gold (Control) Act, 1968. Analysis: The appeal was filed against the Collector of Central Excise's order imposing a fine and penalty under the Gold (Control) Act, 1968. The appellant contended that the gold in question belonged to his mother, and as per the proviso to Section 71 of the Act, it should not be confiscated if the act or omission leading to confiscation was without the knowledge or connivance of the owner. The adjudicating authority accepted that the gold belonged to the appellant's mother and had not taken any action against her. Therefore, the proviso to Section 71 was directly applicable, leading to the setting aside of the confiscation order. The key legal question was whether gold belonging to a third party could be confiscated under the Act for any act done without the owner's knowledge or involvement. The proviso to Section 71 of the Act was crucial in this regard, stating that if it is established that the gold belongs to a person other than the one who committed the act leading to confiscation, and such act was without the knowledge or connivance of the owner, confiscation may not be ordered. The adjudicating authority's acceptance of the appellant's claim that the gold belonged to his mother, coupled with the lack of proceedings against the mother, led to the application of the proviso and the setting aside of the confiscation order. Regarding the penalty under the repealed Gold (Control) Act, 1968, the judge found no reason for intervention as the quantum of penalty was not deemed excessive or harsh. Therefore, the penalty was confirmed in its entirety. Despite the repeal of the Act, the penalty aspect was maintained. Consequently, the appeal was disposed of with the confiscation order set aside, and the penalty upheld without any reduction.
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