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1988 (11) TMI 114

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..... virtually an illiterate person and knows only to sign his name in Hindi. He is 87 years old. The petitioner possesses a money lending licence. According to the petitioner, he handed over some old ornaments belonging to the family and forfeited ornaments to one goldsmith, Panchamlal Shaw for melting and for preparing new ornaments out of the same in view of marriage of a boy and a girl in his family. Accordingly, he had made over 111 tollas 11 annas of gold to the said Panchamlal Shaw who melted the said gold and kept the same with the petitioner for safety. According to the petitioner, the said Panchamlal Shaw would take the melted gold for making ornaments as and when required. The Customs Authorities searched the shop and residential prem .....

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..... uld decide the case on merits. Pursuant to the said order of this Court, the Tribunal granted personal hearing to the petitioner. The Appellate Tribunal in its order held that contravention of Section 8(1) of the Act is of a serious nature. The Tribunal affirmed the finding of the Collector for absolute confiscation and held on the facts of this case, the gold should not be released on payment of redemption fine. This order of the Appellate Tribunal has been challenged in this proceeding. 3. The finding of the Tribunal has been assailed as erroneous. The question relating to payment of redemption fine in lieu of confiscation of gold was not before the Collector. This Court by the order dated 24th June, 1986 directed the Tribunal to decide .....

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..... said gold were dismissed by the Special Secretary. There was, if at all a technical violation for not making the declaration for the gold under the Gold Control Act. It appears that there is a prevailing practice in the department while ordering confiscation to allow invariably to redeem the gold upon payment of redemption fine. It appears to me that the Tribunal did not take into account the prevalent practice on the circular of the Govt. in this regard. The circular of the Gold Control Administrator issued under sub-section (4) of Sec. 4 of the Gold Control Act is as follows :- "The Administrator hereby authorise every adjudicating officer under Section 78, and every Appellate authority under Section 80, of the said Act, to exercise the .....

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..... inistrator although relied on by the petitioners at the time of hearing before the Tribunal, the Tribunal however, did not deal with that contention at all. It has been stated before me that the petitioners undertook to convert the primary gold into ornaments and furnished certificate of the licensed dealer. An undertaking has been given to this court that the petitioner will convert the said primary gold into ornaments and would furnish a certificate of the licence dealer. The Tribunal as it appears, for rejecting the prayer of the petitioner did not reject the said circular of the Gold Control Amendment. 5. In the premises aforesaid, I am of the view that the Tribunal fell in error in not giving option to the petitioners to redeem the c .....

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..... all. In my view, the finding of the Tribunal cannot be sustained. 7. 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 .....

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..... m the confiscated gold weighing 1302.700 grams on payment of redemption fine. Inasmuch as, the orders of the Collector and Appellate Authorities including the Tribunal are set aside to the extent indicated above, the Collector of Central Excise (Gold) Cell shall pass appropriate order allowing the petitioner to redeem the seized gold upon payment of redemption fine. In determining the quantum of redemption fine, the Collector shall take into account the value of the gold as of the date of the seizure made on 31st May, 1975. Let the Collector pass an appropriate order within six weeks from the date of communication of this order. After the Collector passes the order allowing the petitioner to redeem the seized gold the petitioner shall depos .....

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