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TMI Blog2023 (1) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... A proceeding was initiated on 14.07.1976 for seizure of gold ornaments pledged with the Appellant's family and gold ornaments of the family itself pursuant to the raid conducted by the Central Excise Staff on 02.04.1976 in the Appellant's residential premises. The Appellant in the reply dated 31.03.1977 in response to the Show Cause Notice stated that 11 gold balas, the subject matter of this Appeal, are gold ornaments belonging to the members of the family. The Adjudicating authority held the eleven gold balas as primary gold and passed order of confiscation under Section 73 of Gold Control Act and also levied fine of Rs.2,50,000/- under Section 74 of the Act. The order of the Adjudicating authority was challenged in Appeal. In Appeal the Appellate authority vide order dated 30.01.1980 was pleased to affirm the conclusion with regard to the gold balas and further be pleased to reduce the penalty. The said order of the Appellate authority was challenged before the Revisional Court and the Revisional court, by virtue of order dated 24.06.1981 was pleased to pass order for fresh adjudication by the Adjudicating authority in case of certain mortgaged item and upheld the confis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 02.04.1976. This Tribunal by virtue of order dated 16.07.1992 was pleased to set aside the order of confiscation and imposition of fine. The Tribunal was further pleased to remit back the matter to the Adjudicating authority for reconsidering the question as to whether those gold balas are primary gold, as contended by the Department or are ornaments as contended by the Appellants. * When the Adjudicating authority held the so-called Balas as primary gold, the order of the Adjudicating authority was challenged in Appeal. The Appellate authority partly allowed the appeal. Thereafter, the order of the Appellate authority was challenged before the Revisional authority. The Revisional authority also partly allowed the revision application. Against the order passed by the Revisional authority, the Appellant approached the Tribunal. The Tribunal vide order dated 16.07.1992 was pleased to remit back the matter to the Collector, Central Excise for reconsideration after setting aside the order of confiscation and penalty. * When the matter was not adjudicated by Adjudicating authority as per direction of the Hon'ble High Court for a period of 27 years, the Appellant filed a represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts having a definite shape to be worn by the local people. In any view of the matter the seized gold balas are ornaments and may be released to the petitioner. 4. On the other hand, the Ld.Authorized Representative for the Respondent Department submitted as under:- 4.1 The following defects are noticed in the instant Appeal:- (a) The Appeal Paper book does not contain the copy of the Show Cause Notice, copy of the Order-in-Original dated 13.05.1978, copy of the Order of the Appellate authority dated 31.01.1980. (b) This Appeal was filed by Shri Sailendra Narayan Panda, s/o Late Dilip Kumar Panda claimed to be the legal heir of Late Binod Bihari Panda. However, no succession certificate was submitted against the said claim. It is also unknown whether Shri Sailendra Narayan panda is the only successor-in-interest of Late Binod Bihari Panda or any other successor-in-interest of Late Binod Bihari Panda are there or not and if any should be the coapplicant of this Appeal petition. Thus, successor-in-interest of Late Binod Bihari Panda (the noticee to impugned Show Cause Notice) has to be determined first before proceeding further. These defects are to be removed. 4.2 From t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Panda has filed some documents which would go to show that he is the legal heir of Late Binod Bihari Panda. 7. Further, in the order impugned before me Shri Sailendra Narayan Panda has been considered as the legal heir of Late Binod Bihari Panda. I find that the Hon'ble High Court of Orissa, the Chief Commissioner and the Principal Commissioner have already considered Shri Sailendra Narayan Panda, the Appellant before me as legal heir of Late Binod Bihari Panda. Now the question of legal heir being raised by the Authorized Representative for the Department in the course of hearing does not have any legs to stand at this juncture. This is totally uncalled for and the Authorized Representative before raising such legal issues should have properly gone through the records of the case and once Shri Sailendra Narayan Panda has been considered as the legal heir he has no authority to question and raise doubts on such consideration. 8. The 11 gold Balas of the Appellant are lying with the Department since 02.04.1976. The Hon'ble High Court by virtue of order dated 16.07.1992 was pleased to set aside the confiscation order passed by the Adjudicating authority holding that the said 11 gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the Adjudicating authority is of the opinion that 11 gold Balas are ornaments. Had it been otherwise, he would have re-adjudicated the matter afresh in view of the Hon'ble High Court's direction. 11. Further the Principal Commissioner passed order for confiscation of the gold Balas in question and further imposed penalty of Rs.50,000/- (Rupees Fifty Thousand only) on a dead person. It is settled principle of law that any order passed against a dead person is a nullity. 12. It is submitted that 11 gold Balas of the Appellant are lying with the Department since 02.04.1976. The Hon'ble High Court by virtue of order dated 16.07.1992 passed in OJC No.1891 of 1981 was pleased to set aside confiscation order passed by the Adjudicating authority holding the said 11 gold Balas as primary gold and also levying fine in respect of the gold Balas. The Hon'ble High Court was further pleased to remit back the matter to the Adjudicating authority for reconsidering the question as to whether those gold Balas are primary gold, as contended by the Department, or are ornaments as contended by the Appellant. 13. When the Adjudicating authority was pleased to hold the so-called Balas as pr ..... 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