9911796707
TMI Blog1980 (9) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of India. The petitioners have also challenged the appellate order dated January 24, 1976 passed by the appellate authority and the revisional\order dated June 21, 1978 as per Annexure "C" passed by the Central Government. The impugned order as confirmed by the appellate and the revisional authorities is challenged on the following two grounds :- (1) That the show cause notice of adjudication and confiscation and penalty was illegal inasmuch as it was not issued within the period of six months but was issued during the extended period without affording any opportunity to the petitioners to show cause against the proposal to extend the period of six months. (2) That the competent authorities have not taken into consideration the explanation offered the petitioners. 2. The facts are not in dispute. The premises of the petitioners were raided on February 12, 1971. Primary gold and gold ornaments in excess of the quantities mentioned in the statutory registers (G.S. 13) were found from the premises. The extent of the excess was 2335.729 gms. A show cause notice was issued by the competent authority on October 15, 1971 and the petitioners were afforded an opportunity to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x months. In other words, the argument is that though the second proviso empowers the authority concerned to issue show cause notice within the period of six months from the date of the seizure of the gold or such further period as the Collector of Central Excise or of Customs may allow and though the period was extended as contemplated by the proviso, inasmuch as the period was extended without affording any opportunity to the petitioner to show that the period should not be extended, the show cause notice itself was bad in law and that the impugned order of confiscation and penalty was, therefore, rendered void. Reliance was placed on Assistant Collector, Customs v. Mathotra, A.I.R. 1972 S.C. 689. in support of this submission. In the said case, the question which came up before the Supreme Court was one relating to the interpretation of Section 110(2) of the Customs Act of 1962. The said provision in so far as material is in the following term "110 (2). Where any goods are seized under sub-section (1) and no notice in respect thereof is given under Cl. (a) of Section. 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l) Act, 1968. In paragraph 13 of the judgment in AIR 1972 SC 689 (693) the Supreme Court has made the following observations :- "The question therefore is as to the nature of such a function and power entrusted to and conferred on the Collector by this proviso. It will be noticed that whereas sub-section (1) of Section 110 uses the expression "reason to believe" for enabling the Customs Officer to seize "cods, the proviso to sub-sec. (2) used the expression "sufficient cause being shown". It would seem that sub-section (1) does not contempt an enquiry at the stage of seizure, the only requirement being the satisfaction of the concerned officer that there are reasons to believe that the goods are liable to confiscation by reason of their illegal importation……. It is clear that the legislature was not prepared to use the same language while giving power to the Collector to extend time and deliberately used the expression "sufficient cause being shown" ... The word "sufficient cause being shown".. must mean that the Collector must determine on materials placed before him that they warrant extension of time. ... ... ... ... ... ... ... But there can be no doubt at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exists for extending the period. Since the power to extend has been conferred on the Collector of Customs and it has been exercised in accordance with the second proviso, it cannot be said that the show cause notice issued by the competent authority before passing the order of adjudication (ordering confiscation and penalty) was illegal or void. Apart from the difference in the language, the observations made by the Supreme Court in paragraph 15 Malhotra's Case show that the Supreme Court has based its decision mainly o the circumstances that the proviso empowers the Collector acting under the Customs Act to decide the question about extension provided and on1y provided existence of sufficient cause is established. This is evident from the circumstance that the Supreme Court has in terms observed that since the Collector has on facts to decide on the existence of a sufficient cause, although his decision as to sufficiency of materials before him may be within his exclusive jurisdiction, it is nonetheless difficult to comprehend how he can come to his determination unless he has before him the pros and cons of the question. Further onward the Supreme Court has observed that it can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In fact no such grievance was made before the appellate or the revisional authority. As has been pointed out in the affidavit in-reply and as has been argued by the learned Standing Counsel, what was seized from the petitioner was "primary" gold and not "standard gold". In the first place it was not stated as to how much standard gold was obtained from Jagannath Parikh. In the second place what was acquired from Jagannath Parikh were bars of standard gold and not primary gold. Learned Counsel has also called our attention to the requirement of Rule 6 read with Schedule II to the effect that the following particulars shall be stamped on each standard gold bar :- "(i) on the obverse, the name or trade mark of the refinery, fineness and weight of the bar; and (ii) on the reverse, the serial number of the bar, date and year of manufacture and code letter of the refinery. Note : Serial number of the standard gold bar should be changed on first day of every month. Separate serial number may be used for the bars of 10, 50 and 100 grammes weight." "Standard gold bar" has been defined by Section 2(u) as meaning primary gold of such fineness, dimensions, weight and description and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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