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TMI Blog1988 (3) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... ey found the following difference between statutory records and physical stock : (1) Primary gold weighing 29.400 gms. (2) Old gold ornaments weighing 74.800 gms. (3) New gold ornaments weighing 591.400 gms. Having regard to the said discrepancies, the said quantity of gold was seized under a Panchnama. The statements of the partners of the firm were recorded and thereafter show cause notices were issued as to why the seized gold should not be confiscated and why penalty should not be imposed. After the receipt of the reply and after affording personal hearing, the Deputy Collector of Customs, Gold Control, ordered confiscation of the seized gold but allowed redemption on payment of fine of Rs. 5,000/-. He also imposed a personal pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns who had given the gold ornaments for repairs and for that purpose they had sought cross-examination of the panchas and the seizing officer. But then, their request was not granted. The adjudicating authority, though put certain questions to the seizing officer (Superintendent), did not allow the advocate to put any questions. The Appellate Collector gave a curious reasoning that there is no provision in the Gold (Control) Act or Rules laying down inherent right of cross-examination. Shri Shah urged that thus there was total denial of principles of natural justice. The fourth contention of Shri Shah was that after the adjudication and after there was an order for release of gold, they were made over to the Income-tax authorities and the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by the authorities below may be set aside. 4. Shri Prabhu appearing for the Collector, however, justified the orders passed by the authorities below. He contended that the seizure took place in the presence of the partners. The partners did not raise any objection at that stage. On the other hand, they admitted the contravention. Therefore, it is not open to them to contend that what was seized was not the unaccounted gold. 5. As regrds the denial of principles of natural justice, Shri Prabhu submitted that there is no legal right to cross-examine the witness and as such the denial cannot be made a grievance. Shri Prabhu in other respects supported the reasons given in the two orders. He also submitted that having regard to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rather difficult to accept at this stage. In the panchnama, in more than one place it was stated that what was seized was the gold unaccounted. Shri Shah had submitted that since the panchas as well as the seizing officers were not allowed to cross-examination, the contents of the panchnama should not be accepted. There is considerable force in the contention of Shri Shah on this ground. I would have straight away set aside the order and remanded the matter for consideration afresh after affording opportunities to cross-examine the panchas as well as the seizing officer. But then, gold had already been released, it will not be available for inspection and effective cross-examination will also not be possible. Shri Shah was therefore rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e produced for cross-examination. The adjudicating authority was satisfied that the appellants should be given an opportunity of establishing their contention but then he followed an unusual procedure. Instead of subjecting the seizing officer and panchas to cross-examination during the adjudication proceedings he himself put certain questions to the seizing Superintendent and got a negative answer from him. Even though the learned advocate for the appellant was present, the adjudicating authority did not permit him to put any question to the Superintendent. The procedure adopted by the adjudicating authority to say the least is an empty formality. It does not satisfy the reasonable opportunity of being heard contemplated by law. The Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of principles of natural justice. This has been the view of the Central Board of Excise and Customs as is clear from the case of Vaidyanath Tobacco Agencies -1981 E.L.T. 94 CBEC. The Board held that the denial of cross-examination of the officer who conducted the inspection of stock is denial of natural justice. I do not think that there is any necessity to multiply the case law in this regard. What is to be borne in mind by the adjudicating authority and appellate authority is not that whether there is provision for cross-examination in the Gold (Control) Act or Rules but whether the facts and circumstances of the case justifies granting of such a request, made by a party who is required to rebutt the charges or who is required t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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