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TMI Blog1987 (2) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... ta Parcha from the Gaddi of the ground floor portion of the shop. The recovered gold weighed 295.500 Gms. and was valued at Rs. 26,666/-. The gold was seized under Section 66 of the Gold (Control) Act, 1968 as Shri Vijay Kumar could not furnish any evidence in support of the lawful possession of the same. He, however, denied the ownership of the gold and stated that it might have been left by some one sitting on the ground floor of his business premises. He further stated that he was a silver refiner and had no dealings in gold. Subsequently, on 22-12-1978, S/Shri Suresh Chand Agnihotri and Mahesh Chand Agnihotri, residents of 133/134, M-Block, Kidwai Nagar, Kanpur, submitted an application claiming that the seized gold belonged to their father Shri Ram Jiwan Agnihotri who expired on 4/5-12-1978. They also stated that on 20-11-1978 their father had gone to the shop of Shri Vijay Kumar for refining silver ornaments and weighment of 5 pieces of gold weighing 25 tolas 5 mashas. They further stated that as soon as he gave silver ornaments for melting, some one sitting in the shop shouted that the Customs Officers had come and in the state of panic their father ran away from the shop pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Chand Agnihotri and Mahesh Chand Agnihotri received the impugned order on or about 31-8-1984, deposited the redemption fine on 13-9-1984 and intimated the fact of depositing the redemption fine to the Collector on 18-9-1984. The Collector was also supposed to receive the impugned order on or about 31-8-1984. The date of 24-9-1984 shown by the Collector in his appeal is, therefore, incorrect. (ii) Shri Vijay Kumar, from whose premises the gold was seized, denied the ownership of the gold. The seized gold belonged to Shri Ram Jiwan Agnihotri, who went to the shop of Shri Vijay Kumar for getting silver ornaments refined and left behind the gold there. Report of the commission set up the adjudicating officer shows that he got his silver refined in that shop on 20-11-78. S/Shri Suresh Chand Agnihotri and Mahesh Chand Agnihotri claimed the ownership of gold on 22-12-1978. There was no other claimant of the gold. Therefore, according to the provision of Section 79 of the Gold (Control) Act, show cause notice should have been issued to them. In the absence of any show cause notice issued to them, confiscation of the gold became illegal. The decision of this Tribunal in the case of Dwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnihotri expired on 4-12-1978. Between 20-11-1978 and 4-12-1978 he did not claim the ownership of the gold. His sons also did not claim the gold between 20-11-1978 and 21-12-1978. Shri Ram Jiwan Agnihotri was not the owner of the gold. Additional Collector did not accept that the gold initially belonged to Shri Ram Jiwan Agnihotri. Collector (Appeals) was wrong to hold that Additional Collector concluded that the gold belonged to Shri Ram Jiwan Agnihotri. He proceeded under a misconception. Show cause notice was not to be issued to S/Shri Suresh Chand Agnihotri and Mahesh Chand Agnihotri. However, they were heard by the Additional Collector, in view of the provision of Section 79 of the Gold (Control) Act, for the purpose of their representation. Even if it is considered that Shri Ram Jiwan Agnihotri was the owner, then also his sons could not explain how he acquired and possessed the primary gold. There is no provision in the Act for issue of show cause notice to the successors. (iii) As Shri Ram Jiwan and his sons were not the owners of gold, they had no right to appeal and the Collector (Appeals) had no jurisdiction to entertain their appeal since they were not the persons aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned advocate has not produced any contrary evidence. His allegation is based an presumption. We have accepted the affidavit and in view of the affirmation made by the Additional Collector we hold that the appeal has been filed by the Collector within the statutory period of three months and the same is not barred by limitation. The Collector of Central Excise, Kanpur authorised the Additional Collector under Section 81-A(1) [81(3) ?] of the Gold (Control) Act to file the appeal and the same has been filed accordingly. The appeal is, therefore, legally valid. 7. As already held by this Tribunal in the case of Jeewan Lal K. Jain, show cause notice is to be issued to the owner of the goods after the adjudicating officer is satisfied that the seized goods belong to a person other than the one from whom the goods were seized. In this case, show cause notice was issued to Shri Vijay Kumar as he was presumed to be the owner of the gold under Section 99 of the Gold (Control) Act. Although S/Shri Suresh Chand Agnihotri and Mahesh Chand Agnihotri claimed the gold, Show Cause Notice was not issued to them because the adjudicating officer was not satisfied about their ownership. They we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of the appellants. The affidavit of Shri Ramadhin Agnihotri appears to us to be an after thought. It also appears to us unusual that instead of telling his sons about the gold and asking them to go to Shri Vijay Kumar for bringing the "jhola" containing the gold, he told Shri Ramadhin and asked him to go to Shri Vijay Kumar for the purpose. We find considerable force in the Additional Collector's contention that the silence of Shri Ram Jiwan Agnihotri till his death and later by his sons clearly indicates that Shri Vijay Kumar and S/Shri Suresh Chand Agnihotri and Mahesh Chand Agnihotri were in collusion to lodge a belated claim for protecting Shri Vijay Kumar from penalty, whereas no penalty could be imposed on Shri Ram Jiwan as he was already dead. The appellants have not produced before us any evidence to prove that the seized gold really belonged to Shri Ram Jiwan Agnihotri. For the reasons already stated above we do not consider the affidavit and the deposition of Shri Ramadhin Agnihotri to be adequate evidence to establish the claim. In the circumstances, we hold the view that the ownership of the seized gold is not established. 9. Under Section 73 of the Gol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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