9911796707
TMI Blog2011 (2) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... For the sake of convenience, the questions of law set out in the captioned reference are extracted hereinbelow :- "1. Whether the seizure of goods and consequential proceedings were not bad in law in as much as goods were found after re-examination and adjudication, to be different, in purity from goods allegedly seized at the time of seizure, specially when the statutory record is desired to be maintained purity wise and was so maintained. 2.(a) Whether an order based on grounds facts other than those alleged in the seizure memo/show cause notice is sustainable in law especially when no show cause notice has been given for the excess 142.350 gms found in the adjudication order? (b) Whether the entire proceedings are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice dated 31-7-1985 was served upon the petitioner. After granting due opportunity to the petitioner, the Collector, Central Excise passed an adjudication order dated 12-4-1988. By this order, the Collector repelled all defences raised by the petitioner. In the operative portion of the order, the Collector directed confiscation of excess gold found to the extent of 142.350 gms. The Collector, however, by the very same order granted an option to the petitioner to redeem the confiscated gold ornaments on payment of Rs. 10,000/-. In addition to this, the Collector imposed a penalty of Rs. 5,000/- on the petitioner under Section 74 of the Gold Control Act (hereinafter referred in short, as the G.C. Act) for contravention of provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law are pivoted on two broad pleas : (i) that the purity of the gold ornaments seized as shown in the panchnama was different from that which was reflected in the show cause notice; and (ii) the imposition of penalty was bad in law as the discrepancy was of a small order and hence, being only a technical breach of the law, penalty ought not to have been imposed. 4.2 We have examined both issues. We find that the Tribunal in the order dated 30-8-1989 as well as in the subsequent order dated 28-3-1990 (whereby the petitioner's application for seeking a reference by the Tribunal was dismissed) has adequately dealt with both pleas. In particular, in the subsequent order of the Tribunal i.e., order dated 28-3-1990, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al that in the circumstances, the fact that the total pieces of ornaments seized as also the total weight having remained the same; a mere discrepancy in purity did not vitiate the proceedings. We are in agreement with the reasoning adopted by the Tribunal. 4.4 We are also therefore, in agreement with the view of the Tribunal that question nos. 1, 2(a) and 2(b) were pure questions of fact. 4.5 In so far as the second plea is concerned which relates to question no. 3, i.e. with regard to the issue that penalty ought not to have been imposed as the infraction committed involved only a technical breach, has also in our view been correctly decided by the Tribunal by following the judgment of the Allahabad High Court in the case of ' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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