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TMI Blog1986 (7) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Collectorate, Calcutta had searched the premises of Sambhunath Karmakar and brothers of Ghatal and had recovered ; (i) primary gold weighing 252.960 gms of 22 carat purity, (ii) 1744.472 gms. of new ornaments of 22 carat purity and (iii) 38.636 gms of old ornaments of 22 carat purity. In the seizure list total value of the said gold was stated to be Rs. 16552.50. Thereafter the Superintendent of Central Excise, Gold Control, Calcutta served a notice upon said Sambhunath Karmakar to show cause why the said seized gold under Rules 126C, 126F, 126G and 126H of the Defence of India (Amendment) Rules, 1963 should not be confiscated. The petitioner, Sambhunath Karmakar had shown cause. On 10th January, 1964 the Collector of Central Excise ordered that the said primary gold, new ornaments and old ornaments of gold be confiscated under the Rule 126M of the Defence of India Rules, 1962 for contravention of Rules 126C, 126F, 126G and 126M of the said Rules. Sambhunath Karmakar, did not, however, prefer any appeal against the said confiscation order to the Administrator, Gold Control, Ministry of Finance (Department of Revenue), New Delhi. 3. The petitioner Sambhunath Karma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for his order. 5. For the reasons presently indicated, we are not prepared to allow the Union of India to now urge that the said order dated 11th August, 1977 of Amiya Kumar Mookerjee, J. was null and void. The said judgment dated 11th August, 1977 recorded that the learned Advocate for the Union of India had practically conceded that the Collector of Central Excise ought to be commended to entertain and again dispose of the petitioner Sambhunath's application for reconsideration of the confiscation order dated 10th January, 1964. The State did not also prefer any appeal against the said judgment dated 11th August, 1977 of Amiya Kumar Mookerjee, J. Further the Collector of Central Excise not having disposed of the reconsideration application within the stipulated time, Sambhunath had filed a fresh petition being Civil Rule No. 13111(w) of 1984 inter alia with the prayer for directing the respondents to return the gold seized and also for quashing the show cause and adjudication order. On 28th February, 1985 Ajit Kumar Sengupta, J. passed an order directing the competent Authority to dispose of within five weeks the representation of Sambhunath Karmakar in terms of the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date the Collector of Central Excise set aside the confiscation order and ordered return of the seized gold, i.e. 6th May, 1985 or the owners were entitled to receive value or price of gold prevailing on the date the seized gold and gold ornaments were made over by the Gold Control Authorities to the Government of India Mint. 8. The appellants did not produce either in the trial court or at the time of the hearing of this appeal, the original or copies of the records relating to the disposal of the gold and gold ornaments seized from Sambhunath Karmakar. No papers have been also produced to establish the exact weight of the gold and gold ornaments made over to the Government of India Mint, Calcutta. Mr. Ghosh, learned advocate appearing on behalf of the appellants, has submitted that as early as 10th January, 1964 the Collector of Central Excise passed his order for confiscating the gold and gold ornaments. Although on 20th January, 1966 a Division Bench of this court had made absolute the Rule obtained by Sambhunath Karmakar against his confiscation in criminal court and acquitted him, the order for return of the seized gold and gold ornaments was made as late as 6th May, 1985. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l penalty if it is ultimately imposed. Neither the Defence of India Rules nor the Gold Control Act contain any express provision regarding the amount of the price payable to the owner of the seized gold when an order confiscating the seized gold is subsequently set aside. Secondly, the seized gold are not appropriated when they are seized on the suspicion that same are held in contravention of the Gold Control Act or the Rules. Only after confiscation order is passed, seized gold is to be appropriated. In the instant case, there is no evidence when exactly the seized gold was disposed of as claimed by the appellants. 9. We are unable to accept the submission of Mr. Ghosh that the gold was seized in the exercise of sovereign power of the State and therefore, the owner was not entitled to claim damages for disposal of the seized gold. Authority to seize contraband gold including gold ornaments and to order confiscation are derived from the statute and therefore in the instant case the respondents purported to act in exercise of statutory powers. The Collector of Central Excise having himself set aside the confiscation order, cause of action for return of the gold accrued on the date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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