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TMI Blog2022 (1) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, it has been factually determined that on the very first day of raid on the premises and his shop, the Respondent disclosed that the primary gold was obtained by melting of the gold ornaments belonging to his wife. Therefore, the officers involved in the raid were made aware that the Respondent was not claiming ownership of the primary gold but attributing it to his wife. There should have been no difficulty, therefore, for a notice to be issued under Section 79 of the Act to the wife of the Respondent on the basis of the statement made by him to the officers. For some reason, however, that was not done. Section 79 itself is categorical that irrespective of the person from whom possession of the gold is recovered, a prior notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m gold items recovered from the shop, some equipments used for testing and weighing gold and gold ornaments were also seized. Thereafter, the residential portion of the joint premises was searched from where the officers recovered 1690.400 grams of new gold ornaments, which were kept in an aluminum box. That box was in the wall almirah of the bed room. The gold ornaments therein were kept in a paper slip showing the names of the customers. Apart from the above articles, one touch stone used for gold testing, 9 loose slips showing transactions of gold, one bottle containing gold dust were recovered. 3. It is stated that the Respondent himself did not possess any certificate of goldsmith or even a gold dealer s licence. He claimed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Central Excise (Appeals), Calcutta by the order dated 26th September, 1988. Thereafter, the Respondent-Assessee filed an appeal before the CEGAT, Calcutta, which by the order dated 19th November, 1991 allowed the appeal. It was observed that once the Respondent made a statement on the very first date that the primary gold was a result of melting of gold ornaments belonging to the wife, notice ought to have been issued to her under Section 79 of the Act and in the absence of such notice, the gold could not be confiscated. 7. This view was reiterated in the impugned order dated 7th August, 1992 by the CEGAT while declining to defer any question to this Court for adjudication. 8. Having heard the submission of learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dication is made. 10. A plain reading of the above provision reveals that a notice to the owner is a mandatory requirement prior to passing an order of confiscation of gold or levying any penalty etc. In the present case, as far as the quantity of primary gold is concerned, it has been factually determined that on the very first day of raid on the premises and his shop, the Respondent disclosed that the primary gold was obtained by melting of the gold ornaments belonging to his wife. Therefore, the officers involved in the raid were made aware that the Respondent was not claiming ownership of the primary gold but attributing it to his wife. There should have been no difficulty, therefore, for a notice to be issued under Section 79 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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