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TMI Blog2010 (5) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... peal filed by the respondent against Order-In-Original No. G/14/1976, dated 21-12-1976 passed by the Commissioner. Initially, this application was not placed before this Bench in view of the repeal of the Act, against which the department filed Writ Petition before the Hon ble High Court. The Hon ble High Court by order, dated 25-9-2009 directed this Tribunal to accept the application and dispose of the same in accordance with law. These are the circumstances in which the Reference Application arises today before us. 2. The Tribunal s order, dated 19-9-2006 was passed in pursuance of a remand order of the Hon ble High Court viz. judgment, dated 20-4-2006 in W.P. No. 2386 of 1988 [2007 (207) E.L.T. 217 (Bom.)]. By the said judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the respondent. Subsequently, in August, 1974, the department launched prosecution against the respondent before the Court of Chief Judicial Magistrate, Amaravati. Subsequently, on 26-3-1976, the respondent s appeal against the Collector s order was allowed by way of remand by the Gold Control Administrator. The order passed on 5-5-1976 by the Collector in the remanded proceedings was also against the respondent and, in the result, the primary gold stood absolutely confiscated and there was a penalty of ₹ 2 lakhs on the respondent under Sec. 74 of the Act. The Collector s order was upheld by the Gold Control Administrator on 21-12-1976 in an appeal filed by the party. Later on, the Chief Judicial Magistrate by order, dated 17-10-197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... else and it did not require any finding as it had been settled by the Hon ble High Court at para 20 of the Order, dated 20-4-2006 despite the Hon ble High Court, at para 28(iii) of this Order holding that all contents of the parties were kept open to be agitated before the Tribunal and further clarifying therein that the remand was not confined to the aspect that had been considered by them [the Hon ble High Court]? 3. Whether the learned CESTAT was right in holding that no reason was found to disagree with the findings arrived at by the CJM, who held that the primary gold in the form of 12 Gold slabs and 13 Gold rods were not in conscious possession of the appellant, even when the adjudication proceedings under Section 71(1) of Gold (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Hon ble High Court. He particularly submits that question No. 3 is a substantial question of law arising out of the Tribunal s final order, dated 19-9-2006. The ld. consultant for the respondent is of the view that most of the questions framed by the applicant are questions of facts and that any question of law cannot be said to be arising out of the Tribunal s order. He has exhaustively referred to the findings of the ld. Chief Judicial Magistrate as also to the findings independently recorded by this Tribunal in its final order. It is his submission that the question whether the respondent was in conscious possession of primary gold was independently examined by this Tribunal and therefore, it cannot be said that any question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ? Is there same charge of possession in both proceedings? Is the evidence same? If the answer to all these questions is in affirmative and in the absence of any material distinguishing feature, it would be legally improper to allow the confiscation order to stand against the finding of the Criminal Court. 5. According to the ld. Consultant, the decision taken by this Tribunal conforms to the criteria laid down by the Hon ble High Court and, therefore, no such question of law as framed by the department can arise out of it. It is argued that any settled question of fact cannot be allowed to be reopened through a reference application. The ld. Consultant has relied on a few decisions in his bid to show that the reference jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of 1968 Act is an offence for prosecuting under Section 85(1) and also for confiscation under Section 71(1). Therefore, the second question raised by the applicant does not survive. However, there appears to be some substance in the third question framed by the applicant, though it may not be referable to the Hon ble High Court in its entirety. The first part of the third question framed by the applicant is whether this Tribunal was right in holding that there was no reason to disagree with the findings arrived at by the Chief Judicial Magistrate who held that the primary gold in the form of 12 gold slabs and 13 gold rods was not in conscious possession of the accused (present respondent). The legal proposition made by the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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