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TMI Blog1988 (8) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of fine of Rs. 3750/-. 3. Shri Solanki, appearing for the appellant, vehemently contended that, at the time of seizure of the above mentioned gold, the description of the articles were not stated in the Panchnama. The gold control officers verified the GS-13 register as well as the physical stock. There was a discrepancy between the two. The physical stock show excess of 302.000 gms and, therefore, those 302.000 gms have been seized. Shri Solanki submitted that unless it is established that there was contravention of the provisions of the Gold (Control) Act in respect of this 302.000 gms the same are not liable to be confiscated. The next submission of Shri Solanki was that within a week after the date of seizure, namely on 28-1-1982 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Gold (Control) Act no gold belonging to any person can be ordered to be confiscated unless the owner is given an opportunity and since no such opportunity had been given the confiscation itself is bad in law. He, therefore, prayed that the appeal may be allowed. 4. Shri Prabhu, appearing for the Collector, opposed this appeal. He contended that on the date of seizure the appellant was given an opportunity to segregate ornaments and gold which were not entered in the GS-13 register. It is only after the appellant segregated them the seizure was done. Neither on the date of seizure nor till the date of reply the appellant choose to inform the department as to the owners of the seized gold. It was only in the reply for the first time th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized the gold and gold ornaments in respect of which there had been no contravention of the Gold (Control) Act, cannot be accepted. According to the averments in the Panchnama which was not controverted it was the appellant who segregated the ornaments and gold which were not accounted in his statutory register. Therefore, in relation to those gold, there was contravention of the provisions of at least Section 55 of the Gold (Control) Act. 8. The next contention of Shri Solanki was that the seized gold belong to the customers of the appellant and it was accounted in the GS-13 register. The second part of his arguments that the seized gold were accounted in the GS-13 register runs counter to the averments contained in the Panchnama. As pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not think fit to inform the department that in relation to the seized gold there are entries in GS-13 register. There is also no explanation by the appellant for this conduct of his. When he had an opportunity to examine the entries in the GS-13 register and if the GS-13 register contained the entries an ordinary ...... man would have immediately informed the department that whatever be his statement earlier made there is documentary evidence in proof of his contention. There are entries in the GS-13 register and the department may kindly verify. No such letter was addressed. It was only for the first time on 19-10-1982, which as contended by the learned SDR, after a lapse of nine months, the names of the owners was brought into picture. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice. Therefore, there was compliance of Section 79. 11. In the case of movable property there is a presumption that whoever possesses is presumed to the owner unless the same is rebutted by him. This legal presumption is incorporated in Section 99 of the Gold (Control) Act. The said section reads, Any person who has in his possession, custody or control any primary gold, article or ornaments shall be presumed, unless the contrary is proved, to be the owner thereof. Therefore, the initial burden of establishing that the seized gold does not belong to him but belongs to somebody else is on the appellant. As discussed earlier, the appellant failed to discharge his initial burden. 12. For the reasons stated in the preceding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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