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TMI Blog1988 (8) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... itself waiver of pre-deposit of the penalty in all these cases prayed for is allowed and the appeals themselves are taken up for disposal today. 2. A. Nos. G/183,184,185,186/88. - The facts in brief are on 18-5-1984 the Central Excise officers of Headquarters Gold Cell, Bangalore, on receipt of information that the Directorate of Revenue Intelligence officers had intercepted 4 persons carrying gold at Hotel Sharada in Bangalore, visited the Hotel and found the appellants Ashok Kumar Agarwal son of Bhaiyyalal and Ashok Kumar Agarwal son of Moolchand along with Mahendra Kumar Agarwal in the Hotel. On examination of the baggage of Ashok Kumar son of Bhaiyyalal it was found that there was a card board carton which was containing eatable and underneath eatables there was a packet containing three pieces of gold each weighing 298 gms., 249 gms. and 211 gms. of 24 ct. purity. On further examination of the bag, another heavy paper roll was found which was containing 40 thin round rods of gold totally weighing 1,468 gms. of 24 ct. purity. Thereafter the person of appellant Ashok Kumar Agarwal son of Moolchand was searched and it was found that he had concealed two paper packets in his sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Collector on the ground that the appellants should be afforded an opportunity to participate in the personal hearing which opportunity could not be afforded to them during the adjudication proceedings. Therefore, the Collector took up the case in terms of the direction of the Tribunal and passed the present impugned order against winch the appeals have now been preferred. 3. Shri G. Chander Kumar, the learned Counsel for the Appellants, submitted that the order passed in de novo proceedings by the Collector is ab initio void and is in violation of the provision of the Explanation to Section 79 of the Gold (Control) Act. The Counsel contended that this Explanation lays down that where any fresh adjudication is ordered under the Act the period of six months specified in the Section for issue of Notice shall be computed from the date on which the order for fresh adjudication is made. In this case the Counsel pointed out that the order of the Tribunal remanding the case for de novo adjudication is dated 1-8-1986 whereas the Notice to the appellants to file their replies was given only on 25-2-1987 which is beyond six months from the date of order of the Tribunal and therefore, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned S.D.R. appearing for the Department, submitted that the legal argument that notice in the de novo proceedings was given belatedly and thereby the order was vitiated is without substance. He pointed out that the communication dated 25-2-1987 to the appellants from the Collector calls for their replies to the notice dated 5-11-1984 already issued and he further pointed out that the date of communication of the Tribunal order is crucial and relevant, as otherwise it would mean that any delay in the despatch of the Tribunal's order directing de novo proceedings may prove fatal to the Notice to be issued in such proceedings by the lower authorities. From the facts in evidence it is clear, according to the learned S.D.R., that appellant Surendra Prasad and Mahendra Kumar are the central figures in the despatch of the gold from Allahabad and the records also show there had been previous movement of such gold. The other two appellants viz. Ashok Kumar Agarwal son of Bhaiyyalal had been an employee of Surendra Prasad Agarwal for more than 8 years and Ashok Kumar Agarwal son of Moolchand had financially contributed in the deal according to his own statement. Appellant Mahendra Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Munilal v. Collector of Central Excise, Chandigarh (AIR 1975 Punjab & Haryana 130) also referred to the Supreme Court decision in Charan Das Malhotra case and observed, "When the provisions contained in the proviso to sub-section (1) of Section 110, clause (a) of Section 124, and sub-section (2) of Section 126 of the Act are looked at, it cannot be gainsaid that adjudication of confiscation of goods can be recorded even without seizure of the goods." 11. Similarly, a Division Bench of the Bombay High Court observed in the case of M/s. Mohan Lal Devdan Bhai v. H.P. Mondkar (AIR 1977 Bombay 320), "On a plain reading of Section 124 it will be open even to the Competent Officer to pass an order of confiscation of goods or imposing any penalty without seizing any goods or after returning the goods under the proviso to sub-section (2) of Section 110 for failure to initiate proceedings within the prescribed time." 12. The Karnataka High Court also had occasion to consider the above decisions in the case of Jevvaraj v. Collector of Customs -1984 (3) ECC 71 = 1985 (22) E.L.T. 44 (Karnataka). Dealing with the contention that when the goods are liable to be returned under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nagpur on 16-5-1984. Their statements further contain details of their journey with the gold, and a perusal thereof shows that these statements are voluntary and reliable. In these circumstances, the original statement of appellant Mahendra Kumar Agarwal has also to be accepted as valid in evidence wherein he has clearly admitted that the gold was given to him by his father for which he had made arrangement to be carried down to Bangalore with the other two Ashok Kumars to whom it had been given by him because of the fact that they were elders, and, in the circumstances, the retraction therefrom has to be discarded. 15. The further plea raised by the appellants that the Certificate from the Mint was not given to them will not be of much avail to them considering the fact that in the communication from the Mint which has been conveyed to them it has been given clearly that no bullion dealer in India is known to manufacture gold of this purity on commercial scale, and that a part of the gold under confiscation is clearly of foreign origin. In the circumstances, on a total consideration of the evidence on record, it has to be held that the order of confiscation of the gold is correc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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