9911796707
TMI Blog1993 (11) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts leading to the order of the CEGAT. It will be sufficient for our purpose to notice that a confiscation proceeding was initiated in respect of 484 grammes of gold seized and the original authority directed confiscation of the said original authority, i.e. the Additional Collector of Customs and Central Excise by his order dated 11-8-1988 directed confiscation of the primary gold weighing 434.900 grammes under Section 71 of the Gold (Control) Act, 1968 and also imposed a penalty of Rs, 5,000/- on Sri K Satyanarayana Subudhi (the present petitioner) and Rs. 1,000/-on Sri Narasingha Gouda under section 74 of the Gold (Control) Act. Against the said order, the petitioner carried the matter in appeal which was heard by the Collector of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4th of August, 1992, stating therein "Since the appellant had already deposited the above redemption fine and penalty as per the evidence produced before us, we hereby direct the Authorities to release the above said gold weighing 250 gms. within three weeks from the date of receipt of this order." Even after this order was passed by the Tribunal, as the gold was not returned to the petitioner, the petitioner has approached this Court. 3.It is undisputed that the Appellate Tribunal passed the order on 19-6-1990 after hearing the Collector of Central Excise who was a party-respondent before the Tribunal and the said Tribunal also passed the order on 4th of August, 1992 after hearing the Collector of Central Excise, who was being repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the order adjudging the confiscation give to the owner an option to pay in lieu of confiscation such fine not exceeding the value of the thing in respect of which the confiscation is authorised, as the said officer thinks fit and, therefore, the fine, in question should be a substitute of the value of the confiscated gold and not an imaginary one and consequently, the order levying redemption fine to the extent of Rs. 25,000/- for the confiscated gold to the extent of 250 grammes is not in accordance with section 73 of the Act. The learned Senior Standing Counsel also urges that the writ application is not maintainable as Shri Narasingh Gouda from whom gold was seized has not been made a party. He also urges that since a criminal proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Standing Counsel while depositing the said amount in the challan, it was indicated that the said sum represents both the redemption fine as well as the penalty levied by the authority and, therefore, it cannot be said that the entire amount of redemption fine had been deposited by the petitioner within the stipulated period. It is also undisputed that on 23-11-1990, another sum of Rs. 3,000/- has already been deposited by the petitioner with the authority and that has been accepted. In this view of the matter, when Rs. 25,000/- has been deposited within three months from the date of receipt of the order of the Tribunal, we find no force in the argument of the learned Senior Standing Counsel appearing for the Union Government that the ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had never raised any objection. The Tribunal, therefore, rightly passed the order directing the Collector to release the gold weighing 250 grammes within three weeks from the date of receipt of the order. In our considered opinion, the proposition of functus officio would not apply to the case in hand and what the Tribunal has directed by its order dated 4-8-1992 is that as a fact the earlier order has been complied with and the petitioner has right to get delivery of the gold in question. We further make it clear that if at all the excise authorities were aggrieved by any such direction, they could have approached any higher forum or should have filed a writ petition, but though more than a year has passed since the order dated 4th of Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the petitioner by the Tribunal was competent and the Collector of Central Excise was a party-respondent. Since Shri Narasingh Gouda was not a party in the appeal before the Tribunal in which the redemption order was passed and which is the subject-matter of the present writ petition, we fail to see how said Shri Narasingh Gouda would be a necessary party to this writ petition. The said contention accordingly fails. 10.The only other question that survives for our consideration is whether the pendency of a criminal proceeding can at all disentitle the petitioner to receive the gold in question in accordance with the order of the Appellate Tribunal, A prosecution for violation of the provisions of the Gold (Control) Act is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
