9911796707
TMI Blog1987 (7) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... = 23.350 gms. Five mohurs = 57.900 gms. Four pieces of Rawa (Gold) = 41.900 gms. One cut piece of Gold Biscuit of foreign origin = 72.000 gms. Five Sovereigns (Victoria) = 42.050 gms. Indian Currency = Rs. 12012/-. All the aforesaid things were seized for contravention of Sections 8(1) and 16 of the Gold Control Act, 1968 (GCA), Section 11 of the Customs Act, 1962 (CA) and Section 13 of the Foreign Exchange Regulation Act, 1973 (FERA). Indian currency was seized as alleged sale proceeds of the contraband gold under Section 121 of C.A. Apart from the above, scrutiny of diary for 1955 recovered during the search revealed illegal purchase of gold and sovereigns for 1381 gms. valued at Rs. 25,598.37p. A show cause notice was issued to both the persons namely, Kailash Chandra and Vishnu Narain. They were asked to show cause as to why the seized goods (gold) should not be confiscated under Section 71 and Section 111 of the GCA, 1968 and C.A. 1962 respectively and why penalty should not be imposed on them under Section 74 and Section 112 of the said Acts respectively. They were also asked to show cause why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle , Coin and Primary gold under the GCA, as follows :- There appears to be some confusion in the interpretation of definitions given for articles , coins and primary gold . Primary gold in any form including circular slabs is not covered within the definition of articles given under Section 2(b) of the Act. Habib Bank coins and Mohurs are circular slabs of primary gold and had never been a legal tender and cannot be categorised within the definition of coin as defined under Section 2(e) of the Act, because these had never been issued by or on behalf of the Government or any other authority in exercise of its sovereign powers in order to be used for the time being, as money, whether such coin is a current coin or not. As a matter of fact these Habib Bank coins and Mohurs in circular slab forms are primary gold and were manufactured in the past by some Banks and Bullion Dealers like Habib Bank, Chemical Maneklal etc. In trade parlance these coins are called HABIB BANK KA SIKKA or MOHUR , guaranteeing their purity and weight as per markings thereon. They were being purchased and sold as primary gold in the past to cater the needs and requirements of the manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of hearing i.e. 3-7-1987. On examination they are found to be circular in shape with inscription and designs on both sides. 8. I have carefully considered the pleas advanced on both sides. The real controversy is whether the gold Mohurs and the Habib coins are primary gold or not. It is not the case of either party that they are coins as defined in GCA i.e. they have not been issued by any Government or any other authority in exercise of its sovereign power. 9. In order to appreciate the controversy, it is appropriate to set out the definitions of article and primary gold as given in the GCA :- 2(b) - Article means anything (other than ornaments), in a finished form, made of, manufactured from or containing gold, and includes - (i) any gold coin, (ii) broken pieces of an article, but does not include primary gold. Definition of primary gold has already been set out above. 10. The appellant-Collector has stressed that these Mohurs, and Habib coins are nothing but circular slabs and are, therefore, covered by the definition of primary gold . He has also stressed that they are known in the trade parlance as primary gold but it is to be noted here t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f coins as follows :- Coins are made by stamping blanks from sheet metal; these are then struck with the appropriate dies to produce simultaneously the designs on the two faces. [Emphasis supplied] The aforesaid material indicates clearly that coins - whether legal tender or not - are a separate commodity by themselves, and are in fully finished form. They would not be covered by the definition of primary gold as given in the GCA. That coins, whether they are legal tender or not, are different from the primary gold is also brought out from the definition of gold in the FERA, 1973. The said Act defines gold as including gold in the form of coin, whether legal tender or not, or in the form of bullion or ingot, whether refined or not and jewellery or articles wholly or mainly of gold . In view of the foregoing discussion, therefore, I hold that Mohurs and Habib coins would be covered by the definition of article in the GCA which is of a residuary character. In other words, it covers everything of gold which is neither ornament nor primary gold. As discussed above, the articles under consideration are not primary gold. Nor are they obviously ornaments. They are, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not come in appeal before the lower appellate authority, nor is he in appeal before this tribunal; therefore, one Mohur as claimed by Shri Kailash Chandra would remain confiscated. 13. As regards the appeal filed by Shri Vishnu Narain, the learned Advocate appearing for him has urged that the 4 pieces of Rawa gold is clearly out of melted gold ornaments and were meant to be given in the shape of ornaments to the daughters of his client. I observe that this has been the consistent stand before the lower authorities. Accordingly, while upholding confiscation of the primary Rawa gold, since possession of primary gold is prohibited under Section 8 of the GCA, I give to the owner an option to get 4 pcs. Rawa gold released on payment of a fine of Rs. 500/- I do not, however, find any reason to interfere with any other part of the impugned order under the GCA which is otherwise confirmed. 14. As regards the appeal against the impugned order passed under the CA foreign marked gold stands already confiscated under the GCA. Onus to prove that the foreign marked gold recovered from the premises of the appellant is not smuggled, lies on the appellant in terms of Section 123 of the CA. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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