9911796707
TMI Blog1999 (12) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the second and third appellants respectively. The case pertains to recovery of foreign origin gold from the car in which the appellants were travelling on 12-7-1989. All the three appellants were occupants of the car which was subsequently brought to the Central Revenue Building, Patna for search and the gold was recovered from the cavities made in the car in the presence of the two witnesses. 2. The case was earlier adjudicated vide Order dated 11-12-1990 which on appeal, was set aside by the Tribunal vide Order dated 3-8-1994, and the matter was remanded to the original adjudicating authority for de novo decision with directions to grant an opportunity to file a reply and to afford personal hearing to the appellants. 2.1 Vide the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority and made a request for adjournment on some flimsy ground of the Advocate being away to Amritsar for the treatment of his eyes. 5. After hearing both sides on this point, though I feel that the principles of natural justice have not been met by the adjudicating authority, nevertheless, I am not inclined to remand the matter to the Commissioner. The seizure pertains to the year, 1989 and once the matter has already been remanded. As such, I do not think it necessary, after a lapse of about 10 years, to remand the matter again to the adjudicating authority. It is a settled proposition of law that any order passed in violation of or non-compliance with, the principles of natural justice, is a void order and is a nullity and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the Tribunal s decision in the case of Ashoke Kumar Patel v. Collector of Central Excise, Calcutta-I reported in 1991 (37) ECR 59 (CEGAT-ERB). In that case also, the seizure memo did not reflect the provisions of law under which the same was seized. It was held by the Tribunal in para 7 as follows :- .. As far as the seizure itself is concerned, there is nothing in the panchnama to show that the gold was seized under the Gold (Control) Act, 1968. In order to have a valid seizure, the same should be seized under Section 66 of the Gold (Control) Act on having a reasonable belief in this regard, but nowhere in the panchnama it is stated that the officers seized the same under the Gold (Control) Act, and they had any reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods are liable for confiscation is a pre-condition for seizure. Reliance has also been placed on the Supreme Court s decision in the case of Payal Ashok Kumar Jindal v. Captain Ashok Kumar Jindal reported in 1992 (60) E.L.T. 19 (S.C.). The Delhi High Court s decision in the case of Prem Raj Madan Lal Aboti and Another v. Collector of Central Excise, Poona and Others reported in Civil Writ No. 1202 of 1969, dated 15-12-1976, is also to the effect that as the gold was seized under the Foreign Exchange Regulations Act and under the Customs Act, 1962 and was never seized under the Gold (Control) Act, 1968, the condition precedent was absent for its seizure and confiscation under the Gold (Control) Rules. In this case, I find that the forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad shown his ignorance and denied any visit to Nepal and purchase of the gold in question. It is the statements of the two other appellants which give the details of going to Nepal and coming back with the gold. The said statements were retracted by the appellants on being produced before the Chief Judicial Magistrate, Patna and a prayer was made before him to get the appellants examined from a medical practitioner so as to test the veracity of their allegations as regards the torture having been given to them. It is also seen that the appellants were detained at about 7.30 a.m. on 12-7-1989 by the Customs Officers and were subsequently brought to the Customs House and were detained in lock-rooms. But they were produced before the Chief Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants being in a prolonged custody and they were produced before the Chief Judicial Magistrate beyond the period of 24 hours prescribed under the law and the fact of retraction of the said statements on the first available opportunity read with the other detailed representations made to various authorities, I have no hesitation to hold that the statements relied upon by the Department are not voluntary and true statements. In any case, Shri Jugeshwar Dayal had been consistently denying the ownership of the gold right from the beginning. As such, I hold that the recovery of the gold from the appellants possession is not proved beyond doubt and they are entitled to be extended the benefit of doubt. In any case, I have already held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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