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TMI Blog1985 (6) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... unch of revision applications filed before the Gold Control Administrator have been transferred to the Tribunal in terms of Section 82K of the Gold (Control) Act, 1968, hereinafter called the Act, for being disposed of as appeals. 4. The above batch of appeals arise out of and are directed against a common order passed by the Collector of Central Excise, Madras, referred to supra, imposing a fine of ₹ 1,25,000 under, Section 73 in lieu of confiscation of primary gold weighing 4533.400 gms, under Section 71(1) and a penalty of ₹ 50,000 on appellant Ramesh Babu and ₹ 10,000 each on appellants C.P. Ramakrishnan, C.P. Srinath, K..P. Sarathy, S. Venkatesan under Section 74 and rejecting the claims of appellants V. Munirajaiah, A. K. Ranganatha Chettiar, K. Balagurunathan, V.M. Gopalakrishnan Chettiar, D.R. Chakrapani Chettiar, C.P. Ravindranath, C.P. Srinath, C.P. Ramakrishnan and Smt. Indirabai. 5. The brief facts leading to the appeals are as follows. On 8-6-1979, the officers attached to Customs Preventive Unit, Coimbatore, while patrolling at Uppilipalayam bus stop at Coimbatore, found appellant Ramesh getting out of a bus bound for Coimbatore from Erode, in a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rised as a technical contravention of Section 42 and, therefore, the charge under Section 8(1) for possession simpliciter of primary gold is misconceived. It was urged that in the complete absence of any evidence that appellant Ramesh Babu refined any gold, he cannot be proceeded against for contravention of Section 17 of the Act. In expatiating on the above submissions, the learned counsel conceded the contravention of Section 42 so far as appellant Ramesh Babu is concerned. The finding of the adjudicating authority regarding a charge of contravention under Section 55 against appellant Ramesh Babu was also assailed as contrary to law on facts since entries of the gold under seizure have been made in the G.S. 13 accounts. The learned counsel assailed the impugned order on the ground that reliance should not have been placed on the confessional statement of appellant Ramesh Babu recorded on 8-9-1979, particularly when the same has been retracted by wire, followed by letters to the authorities. At any rate, when many claimants referred to above have put in claims as owners of the gold under seizure, confiscation of the same is statutorily prohibited by the proviso to Section 71 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the moment a person starts transporting primary gold for purposes of sale or purchase he will be a dealer within the meaning of Section 2(h) and such dealing without licence could constitute infraction of Section 27 of the Act. Having regard to the scope of Section 27 and the definition of the term 'dealer' under Section 2(h), coupled with the statement of appellant Venkatesan before the authorities on 11-9-79, clearly implicating appellant Ramesh Babu as one who was involved in the purchase and sale of gold, the charge under Section 27 has been clearly substantiated. The learned DR further submitted that all the claimants have been subsequently set up with a view to avert confiscation of the gold under seizure and if really the gold under seizure belonged to the various claimants, appellant Ramesh Babu would have at the earliest opportunity given the names of the various claimants and the petition of Ramesh Babu dated 13-9-79 does not give names of the claimants at all and, therefore, the claimants have been, according to the learned DR, thought of at a later point of time and were set up by appellant Ramesh Babu. The learned DR also submitted that the statements of appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apart from it, in the case of claimants also, it is not acceptable in view of the fact that appellant Ramesh Babu does not give out the names of the claimants in his petition dated 13-9-1979. No doubt, the learned counsel for the appellants drew our attention to the various petitions of the claimants dated 13-9-1979 and 14-9-79 and contended that when the claimants themselves had made a claim, the non-disclosure of the names of the claimants by appellant Ramesh Babu is not of any consequence at all. In our opinion, the mere ipsi dixit of the claimants, in the circumstances of the case does not carry with us any conviction at all regarding their claim of ownership and such a claim of ownership will have to be satisfactorily established by convincing evidence under law, more particularly having regard to the statutory presumption incorporated under Section 99 of the Act that any person who is in his possession, custody or control of any primary gold or ornaments shall be presumed, unless the contrary is proved, to the owner thereof. In our view, the statutory presumption under Section 99 of the Act against the claimants has not been dispelled by acceptable cogent evidence or other m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Section 167 of the Sea Customs Act, 1878 has observed : "The case of Hansraj and his associates thus fell under Section 167(8) (of the Sea Customs Act, 1878) in that their acts, on their own showing, amounted, in any event, to an attempt on their part to smuggle gold and export currency notes to Pakistan contrary to Sections 23A and 23 B of the Foreign Exchange Regulation Act, 1947 read with Section 19 of the Sea Customs Act, and therefore, they were liable to personal penalty and the currency notes were also liable to confiscation. The Collector's order in these circumstances cannot be interfered with." That was also a case where in a criminal prosecution the accused persons were acquitted and the ratio decidendi of the ruling is that where an order of confiscation has been passed on the basis of sustainable presumptions and sufficient evidence, it was not open to a Court to disturb the order of confiscation. 11. In our ruling referred to in para 9, we have also discussed in depth the ruling relied upon by the learned Counsel for the appellants. It would be redundant to cite case laws herein and it would suffice if we advert to our earlier ruling referred to above exhausti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade out. 14. The learned DR drew our attention to the ruling of the Madras High Court reported in 1978 TLR 1735 in R.S. Kalyanaraman v. The Collector of Customs, Madras and another and contended on the strength of the same that the departmental proceedings under Section 112 could not be said to be vitiated merely because they were based on a consideration of the confession of the co-accused, especially when such confession was only one of the pieces of evidence taken into consideration. We have had occasion to refer to the same, with approval, in our Bench ruling in Appeal No. CD(T) (MAS) 104/80 to 106/80, dated 29-11-83 - Kallatra Mahin and others v. Collector of Central Excise, Bangalore. It is axiomatic that in a criminal prosecution a confession of a co-accused is not per se evidence within the meaning of Section 3 of the Evidence Act and cannot be pressed into service by prosecution as a piece of substantive evidence whereas in adjudicating proceedings the confession of a person in the position of an accomplice can well be taken into consideration as one of the circumstances. 15. Having carefully considered the materials available on record we find that the charges of contra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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