9911796707
TMI Blog2000 (1) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances of the case and on a true construction of Sections 1 (sic) 79 of the Act, the failure to give show cause notices to the persons claiming ownership of the new gold ornaments had vitiated the order relating to their confiscation." 2.The facts of the case are that the applicant was a partnership firm with Shri Gauri Shanker and his son Krishna Gopal as its partners. The business premises of the applicant were searched by the authorities under the Gold Control Act on 29th of March, 1980 and from an iron safe installed in the room adjacent to connected with the shop, 275 pieces of new gold ornaments weighing 1092.400 gms. and 20.900 gms. of old gold were found and seized as unaccounted gold in terms of Section 66 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d they were lying with the applicant only by way of "amanat". This contention was not accepted at any stage of the proceeding. It is out of aforesaid order of the Tribunal that the question, as reproduced above, has been referred for the opinion of this court. 3.We have heard Shri Janardan Sahai, learned Councel for the applicant and Shri Surya Prakash, learned Counsel for the opposite party. 4.The contention of the learned Counsel for the applicant is that several persons had sent applications to the Superintendent, Central Excise claiming ownership of certain quantities of new gold ornaments which had been manufactured by certain goldsmiths on their behalf and under their instructions, the goldsmiths had handed over the ornaments to I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the period of six months specified in the second proviso shall be computed from the date on which such order for fresh adjudication is made." 5.The aforesaid provision shows that the notice is required to be issued to the owner and not to any person, who may assert to be the owner. Admittedly the gold was seized when it was is possession of the applicant firm and under Section 99 any person who has in possession, custody or control any primary gold, article or ornament shall be presumed, unless the contrary is proved, to be the owner thereof. Therefore, there was a presumption accompanied by the certain admissions and the contrary was not proved by the applicant. The burden was on the applicant which it had attempted to discharge bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the adjudicating officer nor filed an appeal to the Tribunal and the present question has not been referred at their instance. Therefore, this judgment is not applicable to the facts of the present case. As pointed out above, the Tribunal has held the petitioner to be the owner of the gold in question. Therefore, the question as referred to this court, cannot be said to arise out of the order of the Tribunal and it is merely academic because in so far as the petitioner is concerned, if he contends that it is not the owner of the goods because in that event the confiscation does not affect the applicant at all. 7. In view of the above, our decision in the matter is: - (1) the question, as referred to this court, does not arise out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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