9911796707
TMI Blog1979 (12) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ion thereof by one Bipin Prasad Agarwala on payment of a fine of Rs. 25,000 and also directing confection of 370.850 Kilogrammes of silver and authorising redemption of the same by the said Shri Bipin Prasad Agarwala on payment of a fine of Rs. 2 lakhs. 2. Petitioner alleges that he carries on money-lending business in his individual capacity from June, 1974 and he also started dealing in silver from September, 1976. He is an assessee under the Income-tax Act in respect of his business. In regard to his silver business, petitioner used to make local purchases of silver as also of old ornaments from the Tarava Market within Bolangir district. Petitioner's natural father Bipin Prasad Agarwala is a partner of a firm running under the name an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken from Dwari, but all these statements had been collected behind the back of the petitioner. On 18-10-1976, petitioner applied for return of the seized silver and made a second petition to the same effect on 13-12-1976. On 7th of March, 1977, the Assistant Collector recorded a further statement of Bipin Prasad Agarwala behind the back of the petitioner and on the same day samples were drawn for the purpose of assaying from the seized silver from the residence of Bipin Prasad Agarala. On 2-8-1977, the Collector of Central Excise issued show-cause notices to opposite parties 3 to 8 and the petitioner. In the notice petitioner was described as the son of Bipin Prasad Agarwala and it was stated therein that the specified goods were being tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to authorise such transport. Without consideration of these aspects and without furnishing adequate opportunity to the petitioner to substantiate his stand and notwithstanding abundant materiel on the record supporting the stand of the petitioner, the Collector by the impugned order came to hold that the stock did not belong to the petitioner and directed confiscation of the stock of silver as also the ambassador car. That order of confiscation is assailed on the following grounds :- (i) There is no material on record to come to the conclusion that there was violation of section 11K of the Act or the Specified Goods (Prevention of Illegal Export) Rules, 1969; (ii) The entire proceeding is vitiated for gross violation of principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the specified goods was being taken from or into a specified area and, therefore, there was no necessity for a transport voucher. There is no dispute that the place from where the seizure was made is not a specified area while Bombay is. Mr. Mohanty for the petitioner relies upon the finding of the Collector in the impugned order where it has been stated :- "Coming to the merits of the case under the Customs Act, it has already been admitted that the place between Tarava and Bolangir and also the entre State of Orissa is not included in the areas specified by the Government of India in notifications issued under Chapter IV-B of the Customs Act. Movement of silver in such area does not therefore require any transport voucher or do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's stand that the goods was intended to be taken to a particular person at Calcutta failed, there would be an assumption that the goods was intended to move westwards into Bombay area. There is force in Mr. Mohanty's contention that Section 123 of the Act does not apply in respect of silver and, therefore, there was no statutory burden on the petitioner to prove the primary facts relevant to the question in issue. The onus that lay on the Department does not appear to have been discharged. At any rate, the Collector while dealing with the matter has not taken this aspect into consideration. The ratio of the decision in the case of Malkiat Singh and another v. The State of Punjab, A.I.R. 1970 Supreme Court, 713, is applicable. 5. Before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, he having not been so authorised, Section 114 of the Act was not applicable to the case in issue and the maximum penalty leviable was Rs. 1,000. Bipin Prasad Agarwala had preferred an appeal against the impugned order which was still pending before the competent authority. The appeal has now been disposed of against him and the Collector's action has been affirmed. The other two questions which we have taken note of above need not be disposed of finally by us as we propose to quash the order of the Collector and remit the matter to him for a fresh disposal. The Collector shall pointedly examine whether Section 11K of the Act has been violated after giving reasonable opportunity to the petitioner to substantiate his case. He should procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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