9911796707
TMI Blog1988 (7) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the first petitioner maintained a separate account. In or about 1973 the mother of the first petitioner gave the said gold bars to him for keeping the same in India Safe Deposit Vault Co. Ltd. at No. 2, Brabourne Road, Calcutta for safe custody. The first petitioner kept the said gold bars weighing about 1575.100 grams in the locker of the aforesaid vault. 3. On February 22, 1975 the Gold Control Authorities searched the said locker and seized the gold bars along with some assorted gold ornaments and articles. On the basis of the said search and seizure a show cause notice dated August 16, 1978 was issued by the Collector of Central Excise inter alia directing the first petitioner to show cause as to why primary gold articles and ornaments should not be confiscated under Section 71 of the Gold (Control) Act, 1968 (hereinafter referred to as the said Act). The first petitioner duly replied to the said show cause notice and a personal hearing was given thereafter to the first petitioner. The Collector of Central Excise by an order dated August 19, 1976 held that the gold bars were obtained by melting smuggled foreign biscuits and the petitioners were indulged in clandestine deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld on payment of redemption fine. The contention of the first petitioner before the Tribunal was that the said gold are ancestral property of the petitioner, that the father of the first petitioner carried on business of gold prior to 1930 and that he gave the said gold bars to the mother of the first petitioner prior to his death, and that when his father died in 1930 he was only 2 years old and that the first petitioner never carried on business of gold and that the violation of Section 8(1) of the Act was a technical one. On these facts, the prayer was made that the Tribunal should grant the option to pay the fine instead of confiscation. The first petitioner's reliance on a circular dated July 30, 1976 issued by the Administrator, Gold Control, which accords permission to take back the primary gold or articles on its release with or without fine in lieu of confiscation, provided the primary gold is sold to a licensed dealer or converted into ornaments. At the said personal hearing an undertaking was also given on behalf of the petitioners to furnish a certificate from the licensed dealer certifying that the said gold was converted into ornaments. It was also submitted before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dead but because there was no Gold Control Act prevalent in the year 1930. After the death of the father, the first petitioner or the members of his family did never carry on any business of gold. It may be that the petitioner on rare occasions granted loan to some relatives on hypothecation of gold ornaments which were released by the Collector of Central Excise. The birth of the first petitioner in a family of goldsmith without anything more cannot be a ground to refuse the redemption of the gold. The finding of the Tribunal that the charges under Section 8(1) of the Act cannot be lightly taken is clearly not sustainable. The admitted position is that the confiscated gold was neither smuggled nor of foreign origin. The proceedings initiated under the Customs Act relating to the said gold were dismissed by the Special Secretary. As I said, the first petitioner received the said gold from his parents which he did not declare under the Gold Control Act. It appears to me that the Tribunal did not take into account the prevalent practice on the circular of the Government in this regard. The circular of the Gold Control Administrator issued under sub-section (4) of Section 4 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal did not act fairly or reasonably in rejecting the prayer of the petitioners for redemption of confiscated gold on payment of fine. In my view, the reasons given by the Tribunal in not allowing the option cannot be sustained. 15. Before I part with this case, I must also dispose of one of the points taken by the respondents. It is contended that this writ petition cannot be entertained inasmuch as a reference application filed by the petitioners against the impugned order of the Tribunal is pending in this Court. However it appears that the said reference application was filed in the early part of 1987 and the same has not yet appeared in the list as application for rule. As indicated earlier, the reference application was rejected by the Tribunal......... reference application under Section 83B(3) is pending. If this court is of the view that a question of law does arise out of the impugned order of the Tribunal, in that event, the court would direct the Tribunal to submit a statement of case and thereafter the matter would be heard. It may take a few years before the matter would be heard and finally disposed of. In that view, even if there is alternative remedy, such remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
