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TMI Blog1986 (11) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory provision. The appellant was duly served with notice under Section 79 of the Act on the 11th of January 1975 requiring him to show cause as to why the seized gold should not be confiscated and as to why penalty should not be imposed under Section 74 of the Act. The appellant filed a representation in response to the said notice wherein it was inter alia contended that the notice though, dated 27.12.1974, it having been served only on the 11th of January, 1975 i.e., more than six months after the seizure of the gold, the seized gold is not liable for confiscation and that the appellant has become entitled to return of the seized gold. The Additional Collector of Customs and Central Excise made an order on the 5th of March, 1976 confiscating the seized gold and levying a penalty of Rs. 5,000/-. The appellant was permitted to redeem the gold on payment of redemption fine of Rs. 30,000/-. On appeal the said order was confirmed by the Collector of Customs and Central Excise on 16th of October, 1976. On a further revision to the Central Government, the order was modified on the 20th of October, 1978 reducing the penalty to Rs. 2,500/- and permitting the appellant to redeem the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable time as may be grated in the notice. If so desired, an opportunity of hearing is also required to be given. The fact that the notice issued in this case is, dated 27-12-1974 and that it was actually served on the appellant on the 11th of January 1975 are are not disputed. It is also not disputed that the seized goods was liable to confiscation having regard to the contravention of Section 55 of the Act. Hence the only limited question for examination is as to whether the second proviso to Section 79 is attracted to the facts of the present case. The second proviso provides that if no notice is given within a period of six months from the date of seizure of the gold etc. or within such further period as may be granted by the authority, the same shall be returned after the expiry of that period to the person from whose possession it was seized. A valuable right accrues in favour of the person from whose possession the gold is seized, if no notice as contemplated by Section 79 is given within the specified period. It is not the case of the parties that any further extension of the period was given by the Collector of Customs and Central Excise. The period of notice to be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but not accepted by him. Tendering of a notice is in law therefore, giving of a notice even though the person to whom it is tendered refused to accept it. We can find, however, no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete. We are, therefore, of the opinion that the High Court was wrong in thinking that the notices were given to all the Councillors on the 10th October. In our opinions, the notice given to five of the Councillors as of less than three clear days". It is thus clear from the authoritative pronouncement of the Supreme Court that the giving of notice contemplated by Section 79 is not the same thing as sending the notice. Hence we have no hesitation in taking the view that the notice in this case was given only on the 11th of January, 1975 and that the appellant inspite of such tender of the notice refused to accept the same. It is also not the case of the respondents that any other mode of service was effected on the appellant on any date prior to 11-1-1975. The mere assertion that the appellant was evad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be subject matter of confiscation. If the said gold cannot be confiscated, it was contended that it must be regarded as gold which is not liable for confiscation. It was submitted that the provisions regarding liability to penalty require that the conduct of the appellant must be such which renders the gold liable to confiscation. If having regard to the operation of the second proviso to Section 79 the gold is not liable for confiscation, it was contended that the penalty also cannot be levied against the appellant. 8. Section 74 which provides for levy of penalty reads as follows : "74. Liability to penalty. - Any person, who, in relation to any gold does or omits to do any act which act or omission would render such gold liable to confiscation under this Act, or is in charge of the conveyance or animal which is liable to confiscation under this Act, shall be liable to a penalty not exceeding five times the value of the gold or one thousand rupees, whichever is more, whether or not such gold has been confiscated or is available for confiscation." It is no doubt true that it is only the conduct of the appellant that would render the gold liable for confiscation for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant, it cannot for that reason alone be stated that the gold is not liable for confiscation. That depends, as already stated, on the question as to whether there has been contravention of one or the other statutory provisions incurring liability for confiscation under the Act. As it is not disputed that the appellant has contravened Section 55, it has to be held that the liability to confiscation has been incurred under Section 71 of the Act. Confiscation and levy of penalty are two independent matters. It may be that in a given case the gold may be confiscated and in another case the gold may not be confiscated. The levy of penalty is an independent matter and does not depend upon the question as to whether the gold has been confiscated or not. It would be useful for our discussion to advent to the observation of the Supreme Court in this behalf in A.I.R. 1985 S.C. 845 between Swepujanrai Indrasanarai Ltd. and Collector of Customs and others, in paragraphs 15 and 16 which reads as follows : "15. ".... The point to note is that so far as the confiscation of the goods is concerned, it is a proceeding in rem and the penalty is enforced against the goods whether the offender is kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becomes entitled to return of the gold seized. But if the conduct of the other person rendered the gold liable for confiscation though in fact the gold cannot be confiscated, the other person having regard to the conduct becomes answerable for action being taken under the other provisions of the Act viz., penalty proceedings. Hence we have no hesitation in taking the view that though the second proviso to Section 79 is attracted and the gold is liable to be returned to the appellant that does not come in the way of the respondents levying penalty under Section 74 of the Act. The decision of the Gujarat High Court in Ambalal's case to which we have referred to earlier in connection with the first point supports the case of the appellant in this behalf. It is observed in paragraph 9 of the judgment in that case as follows : "..... In the instant case, it is clear on the facts narrated above that the notice in question at Annexures B and C to the petition, were not given within the period of six months from the date of seizure of the goods and further a right to get back the seized goods have vested in the petitioner. It was not open to the respondents Nos. 2 and 3 to proceed with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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