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TMI Blog1988 (5) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... und gold pieces of bangles totally weighing 1440 gms. The Income Tax authorities having regard to the weight and purity of the bangles in question made over the same to the Central Excise Department namely the Gold Control authorities. The Gold Control authorities took up further investigation of the matter and effected seizure of the same and issued Show Cause Notice to the respondents herein alleging that the respondents were in possession of gold articles, without having filed declaration and thereby committed contravention of Section 8(iii) read with Section 16 of the Gold (Control) Act, 1968, the Act for short. The proceedings resulted in the order of confiscation of the gold bangles in question with an option to redeem the same on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn pattern engraved on its exterior, is not correct since the weight of the bangles and the purity thereof is very high and the same cannot be called bangles as it is commonly understood. 4. Shri Rajasekharan Nair, the learned Counsel appearing for the respondents contended that once the Department has proceeded to make the allegation in the show cause notice that what had been seized was only articles which had not been declared by the respondent as per law, neither the Department nor the appellate authority for that matter can change this stand during appellate stage to the detriment of the respondents. The learned Counsel contended that if initially the allegation of the Department in the show cause notice that the bangles were article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper declaration under the Gold Control Act, 1968. The Original authority in para 16 of the order has observed as under : No doubt, had the contention of the Department that the item seized is an article of gold was accepted at the appellate stage, perhaps the benefit of the Madras High Court judgment could have. been extended to them. But in the appeal order passed by the Gold Control Administrator, there is a clear observation that the item seized can be treated only as primary gold, if not taken as ornament. The present de novo proceedings were initiated in pursuance of the Appeal order passed by the Gold Control Administrator and there was no other motive behind it. 6. When the Department after due investigation has proceede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to a person to possess articles and ornaments up to 2,000 gms in terms of Section 16(5)(b) of the Act without Filing a declaration. The same view has been taken by the Punjab and Haryana High Court in the case of Sahib Dayal and Asha Rani s case -1983(12) E.L.T. 75 (P H) -1984 ECR 1872 (P H). The Calcutta High Court in the case of/ay Krishna Saha and Another v. D.N. Lal and Others (AIR 1977 Calcutta 468) has taken the similar view. Similar view has been taken by this Tribunal in the case of B.Govinda Rao Others v. Collector of Central Excise, Cochin - 1987 (27) E.L.T. 511 (Tri.) -1987 (10) ECT 416 as well as North Regional Bench of CEGAT, New Delhi in the case of Smt. Lilawati Chhawachharia andAnother v. Collector of Customs and Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wires. Therefore, the definition of primary gold and article are mutually exclusive of each other, inasmuch as gold in finished form can be gold article or ornament but any gold in unfinished or semi-finished form can be primary gold. In view of the earlier finding that the gold was in finished form and therefore articles, supported by the evidence of Chemical Examiner, Cochin it needs very strong evidence indeed, to hold the contrary view that the gold is in semi-finished form. No evidence is discussed in the order except his finding that the gold is dull in colour and has semi-finished look. Therefore it only looked to the Additional Collector to be semi-finished. The Additional Collector however admitted that they were found to have a sm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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