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TMI Blog1989 (6) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, all issued under Section 105 of the Customs Act and searched the residence of the petitioner as well as his gold dealing establishment known as "Akshoy Guinea House" and recovered therefrom and subsequently seized several pieces of gold bars, gold ornaments, obsolete Indian coins, Pak currency notes and Indian currency notes. All the aforesaid Articles, including the currency notes were detained by the aforesaid officers under the provisions of the Customs Act, 1962. 4. Thereafter, an adjudication proceeding was started by the respondent No. 3 and a show cause notice dated August 24, 1968 was issued impleading the petitioner and his wife as parties to the proceeding and charging each one of them individually and separately calling upon them to show cause as to why the aforesaid gold and gold ornaments, the obsolete Indian coins and Pak currency notes should not be confiscated under Section 121 of the Customs Act and why penalties should not be imposed on each of them under Section 112 of the Customs Act. 5. Long thereafter, the respondent No. 3 initiated another adjudication proceeding over the same gold and gold ornaments under the provisions of the Defence of India Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Gold leaving Rs. 10,000/- which was claimed by the. petitioner's wife Smt. Patra as belonged to her and imposed a penalty of Rs. 2,00,000/- on the petitioner under Section 112 of the Customs Act. Charges against the petitioner's wife were however dropped. 10. An appeal was preferred by the petitioner against the said order before the appellate authority being the Central Board of Excise and Customs, New Delhi and the said appeal was pending at the time of moving the instant writ petition. 11. It is the further case of the petitioner that the respondent No. 3 thereafter by separate Order No. 6/Gold of 1970 purported to be dated August 14,1970 but signed on November 11,1970 rejecting the petitioner's objection held that the petitioner's contention that the search itself being on the strength of a search order issued under Section 105 of the Customs Act would take the offence out of the scope of Part III of the Defence of India Rules is a misconception. The said authority further held that in such like cases the facts which cannot be ignored are that the officer ordering the search or the officer conducting the same are also duly empowered officers for ordering and conducting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be adjudged - (a) without limit, by an officer not below the rank of Collector of Customs or Central Excise; (aa) where the value of gold, together with the package, covering or receptacle, if any, in which it is found, liable to confiscation, does not exceed ten thousand rupees, by an officer not below the rank of Deputy Collector of Customs or Central Excise ; (b) where the value of gold together with the package, covering or receptacle, if any, in which it is found, liable to confiscation does not exceed two thousand rupees, by an officer not below the rank of Assistant Collector of Customs or Central Excise. (3) An appeal shall lie to the Administrator from every adjudication of confiscation under sub-section (2) within a period of three months from the date of the communication of the order of adjudication : Provided that in the case of an adjudication of confiscation before the commencement of the Defence of India (Ninth Amendment) Rules, 1963, such appeal shall lie within the period of three months aforesaid or within a period of one month from such commencement, whichever period expires later." "126L. Power of entry, search, seizure to obtain information and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IIA of the Defence of India Rules. Admittedly neither the Ordinance nor the Act had then come into force. Whatever restriction that might have been imposed or contravened must have been under the provisions of the Gold (Control) Rules, 1963. These Rules were repealed by the Gold (Control) Ordinance promulgated on June 29,1968. Section 117 of this ordinance provided as follows :- (1) As from the commencement of this Ordinance, the provisions of Part XII-A of the Defence of India Rules, 1962 shall stand repealed and upon such repeal S. 6 of the General Clauses Act, 1897 shall apply as if the said Part were a Central Act. (2) Notwithstanding the repeal made by sub-sec. (1) but without prejudice to the application of S. 6 of the General Clauses Act, 1897, any notification; order, direction, statement or declaration made or any notice, licence or certificate issued or permission, authorisation or exemption granted or any confiscation adjudged or penalty or fine imposed or any forfeiture ordered or any other thing done or any other action taken under or in pursuance of the provisions of Part XII-A of the Defence of India Rules, 1962, so far as it is not inconsistent with the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Jammu and Kashmir High Court in interpreting the provisions of Sections 71, 74 and 116(2) of the Gold (Control) Rules, Rule 126(16) of the Defence of India (Fourth Amendment) Rules (1966), Rule 126M (1-A) of the Defence of India (Fourth Amendment) Rules and the effect of repeal of Defence of India Rules (1962) and Section 6 of the General Clauses Act (1897) observed in paragraph 12 of the said judgment, as follows: "It will be recalled that the President of India promulgated a proclamation of emergency on October 26, 1962 in exercise of the powers conferred on him by clause (1) of Article 352 of the Constitution of India, the Parliament not being in session at that time the President promulgated on the same day the Defence of India Ordinance (Ordinance No. IV of 1962) which was published in an extraordinary issue of the Gazette of India on that very day. Pursuant to the powers given by the said Ordinance the Defence of India Rules, 1962 (hereinafter called 'The Rules') were framed. The Ordinance was replaced by Defence of India Act, 1962 (Act No. 1 of 1962), which came into force on December 12, 1962. The 'Rules' framed earlier were continued under the Act. On January 9, 1969 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) Proceedings under the Customs Act were drawn against the petitioner and his second wife Smt. Tara Patra and two show cause notices were issued on September 24, 1988 calling upon them to explain why the gold bars, gold ornaments, obsolete silver coins and currency notes should not be confiscated and why penal action should not be taken against them under the Customs Act. (b) Another show cause notice under Part XIIA of the Defence of India Rules, was issued to the petitioner on November 14, 1968 calling upon him to explain why a penalty should not be imposed on him under Rule 126L(16) of the Defence of India Rules, 1962 (Part XIIA Gold Control) and why the aforesaid gold in respect of which an offence appears to have been committed should not be confiscated under Rule 126M of the said Rules. 23. The petitioner, without replying to the show cause notices within the stipulated time, addressed a letter dated March 10, 1969 to the Assistant Collector of Customs (Technical) for Collector of Customs, West Bengal, Calcutta for supply of documents statements, etc. and the same were duly supplied to him by the respondent No. 3 through a letter dated May 12, 1969. 24. Mr. Sanyal has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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