GOPAL CHADDHA Vs. CEGAT

JUDGEMENT

(1.) The petitioner No. 2 Sri Ram Sumer was apprehended by Preventive Officers of the Customs Department, Gorakhpur on 13-7-1990. Some pieces of gold and three hand-written slips were seized from his possession. 2 slips related to rate of gold whereas 3rd related to the value of gold. The statements of petitioner No. 2 were recorded by the authorities of the department and he disclosed that the gold was purchased from one Prem Sarraf, Gorakhpur who had melted the foreign biscuits in presence of the petitioner No. 2. Subsequently petitioner No. 2 retracted his statement stating that the gold seized from his possession was obtained out of the old ornaments of the customers which were received by his employer i.e. petitioner No. 1 for manufacturing new ornaments. The Officer thereafter raided the remises of petitioner No. 1 on 15-7-1990. The statement of Sri Gopal Chaddha petitioner No. 1 was recorded on 23-8-1990 who corroborated the second statement of the petitioner No. 2. However, petitioners were served show cause notice, dated 9-1-1991 after expiry of six months i.e. on 18-1-1991 in which allegations of contravention of the provisions of Customs Act were made and they were asked to show cause as to why the gold and currency seized from petitioner No. 2 be not confiscated and they may not be penalised for contravention of the provision of the Customs Act, 1962. The petitioners, however, applied for release of seized goods in terms of Section 112(2) of the Customs Act, 1962. On consideration of the show cause filed by the petitioners the Assistant Commissioner respondent No. 2 passed order as contained in Annexure-3 to the writ petition confiscating the gold and currency and further imposing penalty of Rs. 10,000/- and Rs. 2,000/- penalty on petitioner Nos. 1 and 2 under Section 112 of the Customs Act, 1962. The petitioners preferred appeal before the Collector of Customs (Appeals), Allahabad who affirmed the order of the Assistant Commissioner. Thereafter the petitioners approached the respondent No. 1 by way of appeals. The Tribunal rejected the appeals upholding the order passed by the lower authorities. Thereafter the petitioners filed Civil Misc. Writ Petition No. 1051 of 1994. The writ petition was allowed and order of the Tribunal was set aside with a direction to re-hear the appeal and decide it according to law. Thereafter the Tribunal again decided the appeal holding that the confiscation of the gold was justified. It, however, allowed the appeal so far as the confiscation of the currency seized from the possession of petitioner No. 2 was concerned. The penalty order was also affirmed by the Tribunal. Subsequently by Misc. Orders, dated 20-10-1998 as contained in Annexure-10 to the writ petition the Tribunal modified its order, dated 21-2-1997 and an option was given to the petitioners to take delivery of the seized goods on payment of fine of Rs. 2,00,000/- in view of the provisions contained in Section 129B(2) of the Customs Act.

(2.) Aggreived by the orders of the Tribunal, the petitioners have filed the present writ petition praying that by issuing a writ of certiorari order, dated 20-10-1998 passed by respondent No. 1 be quashed and mandamus directing the Assistant Commissioner (Customs), Gorakhpur be issued to release the seized six pieces of gold forthwith.

(3.) On behalf of the respondents counter affidavit has been filed in which the orders passed by Tribunal are justified.