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TMI Blog2004 (3) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-3-1975 but the police authorities informed the Department of Central Excise about the recovery of primary gold and for necessary action under the Gold (Control) Act, 1968 (for short the said Act). 2.The Collector of Central Excise, Chandigarh, passed an order dated 3-9-1976 confiscating the gold and imposing a penalty of Rs. 2 lakhs on the petitioners under Section 74 of the said Act. The stand of the petitioners before the said authority was that certain ornaments belonging to different persons were handed over to them and the gold was melted out of the ornaments and was being taken to Delhi for die-cutting of the melted gold. The petitioners claimed that they forgot to accompany the register of certified goldsmith from Jodhpur and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm of primary gold. 5.Learned Counsel for the petitioners has made a four-fold submission attacking the impugned order on the said grounds. 6.The first plea raised is that the petitioners were never given the option of paying fine equal to the value of the goods as envisaged under Section 73 of the Act which is as under : Power to give option to pay fine in lieu"73. of confiscation:- Whenever any confiscation is authorised by this Act, the officer adjudging it may, subject to such conditions as may be specified in the order adjudging the confiscation, give to the owner thereof an option to pay in lieu of confiscation such fine, not exceeding the value of the thing in respect of which confiscation is authorised, as the said officer thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mary gold to be held by a certified goldsmith and once that limit is exceeded, the complete gold is liable to be confiscated. 11.The third plea raised by learned Counsel for the petitioners is that in view of the allegation of the petitioners that gold was made out of jewellery items which have been melted and were owned by third parties, the said parties should have been provided an opportunity of hearing and not to confiscate the gold. In this behalf reliance has been placed on the proviso to Section 72(2). Section 72(2) with the proviso is as under : "72. Confiscation of conveyances. - Any conveyance or animal which has been, or is being, or is attempted to be, used for the transport of gold in relation to which any provision of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven was made by such third parties and petitioners cannot take advantage of the said proviso to escape the order of confiscation. 13.The last contention raised by learned Counsel for the petitioners arises from the plea that the show cause notice issued by the respondent authorities was not within the time stipulated under the proviso of Section 79 which is as under : "79. Giving of an opportunity to the owner of gold, etc. - No order of adjudication of confiscation of penalty shall be made unless the owner of the gold, conveyance, or animal or other person concerned is given a notice in writing :- (i) informing him of the grounds on which it is proposed to confiscate such gold, conveyance or animal or to impose a penalty; and (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued on 2-1-1976. It is thus submitted that same was beyond the period of six months. Learned Counsel also submits that petitioners deposed before the Central Excise authorities that they were the claimants of the gold seized by the police and this deposition was made on 17-6-1974. It is thus submitted that the respondent had full knowledge of the seizure. 16.On the other hand, learned counsel for the respondent contends that the respondents were not in possession of the gold but the same was seized by the police authorities and same was handed over to the respondent from the custody of the police on 24-7-1975. It is thus submitted that the relevant date for the period for six months to expire should be the date when the gold was handed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different offence. The show cause notice having been issued on 2-1-1976 is thus within the period of six months of the seizure on 24-7-1975. I thus find no force in the said submission. 18.Learned Counsel for the petitioners did seek to contend that the Act itself has been abolished subsequently in view of the problems faced by the goldsmith and thus the impugned order itself should be set aside. I am unable to accept this submission since there is nothing stated in the repeal of the said Act by the Gold (Control) Repeal Act, 1990 which nullifies the proceedings which have culminated under the said Act. 19.In view of the aforesaid position, I find no merit in the writ petition and the same is dismissed leaving the parties to bear their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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