9911796707
TMI Blog1987 (4) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to as the Act. 2. The appellant was intercepted at Coimbatore Railway Station by the Central Excise authorities on 20-2-1983 and a search resulted in the recovery of 13 pieces of primary gold totally weighing 2548.480 gms. of 24 ct. purity. The appellant is not a licensed gold dealer nor a certified goldsmith and could not account for the possession of the primary gold. The primary gold pieces were therefore, seized, by the authorities under mahazar, as per law. The appellant gave a statement before the authorities on 20-2-1983 that he was an employee of M/s. Madanlal Jewellers at Amritsar and the Proprietor of the shop, Shri Madanlal had asked the appellant to transport the primary gold under seizure to Coimbatore for handing over th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be subjected to test by the Mint authorities by proper assaying to ascertain the purity. It was further urged that the inculpatory statement recorded from the appellant on 20-2-1983 was neither voluntary nor true and would not merit acceptance as it was retracted when the appellant gave a reply to the show cause notice on 1-1-1985. The learned Counsel also submitted that the gold pieces had been bequeathed to the appellant s children under a Will by the appellant s late father-in-law and as such the children of the appellant being legatee would be entitled to the gold pieces under the said will, and the gold pieces would not be liable for confiscation in terms of proviso (ii) to Section 71(1) of the Act. Finally, the learned Counsel ferven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned DR, there was no immediate retraction of the statement and for the first time, as fairly admitted by the learned Counsel for the appellant, a retraction and claim of the gold pieces under the Will saw the light of the day after a lapse of about two years at the time when the appellant choose to give a reply to the show cause notice. We would like to note that there is no explanation at all on the part of the appellant as to why he did not come forward with a retraction or his claim, under the alleged Will earlier at any point of time, even though gold pieces of very substantial value were seized by the authorities. The plea of the learned Counsel that the opinion of the certified goldsmith that the gold pieces were of 24 carat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntegra and is covered by the authoritative pronouncements of the Supreme Court in the case of Assistant Collector of Customs v. Charan Dass Malhotra reported in A.I.R. 1972 S.C. (698). A similar view has also been taken by the Division Bench of the Madras High Court in the case of Collector of Customs and Central Excise, Hyderabad v. Amruthalakshmi Others reported in A.I.R. 1975 (Madras) (p. 43). The ratio decidendi of the ruling of the Supreme Court and that of the Division Bench of the Madras High Court in those cases is that even if a show cause notice is not issued within the statutory period of six months as envisaged by Section 110(2) of the Customs Act, 1962, that would not take away the power of Department to proceed with confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, not only disowned the gold but also any connection with the appellant. In such circumstances, we are not inclined to attach any importance to the theory of Will propounded by the appellant very late in the day and therefore, rejecting that plea of the appellant, we hold that the gold in question was sought to be transported by the appellant in contravention of law, presumably for purpose of sale. Since the purity of gold have been found to be of 24 carat and since the same was not challenged or assailed by the appellant at any time earlier, we have no other alternative but to uphold the order of confiscation of the same under the impugned order. In this view of the matter, we confirm the impugned order with reference to absolute confisc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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