BASDEO SHAW Vs. COLLECTOR OF C EX

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India the petitioner has challenged the order dated 25th March; 1987 passed by Customs, Excise and Gold (Control) Appellate Tribunal refusing to release the seized and confiscated gold to the petitioner upon payment of redemption fine.

(2.) The brief facts leading to this application are that the petitioner carried on money lending business against deposits of gold and silver ornaments. The petitioner, it is alleged, is virtually an illiterate person and knows only to sign his name in Hindi. He is 87 years old. The petitioner possesses a money lending licence. According to the petitioner, he handed over some old ornaments belonging to the family and forfeited ornaments to one goldsmith, Panchamlal Shaw for melting and for preparing new ornaments out of the same in view of marriage of a boy and a girl in his family. Accordingly, he had made over 111 tollas 11 annas of gold to the said Panchamlal Shaw who melted the said gold and kept the same with the petitioner for safety. According to the petitioner, the said Panchamlal Shaw would take the melted gold for making ornaments as and when required. The Customs Authorities searched the shop and residential premises of the petitioner and recovered the said 111 tollas 11 annas of primary gold as well as some gold ornaments and sovereigns. In one of the gold bars, there was alleged a fictitious marking of foreign gold. The said foreign marking was a fictitious one and the same was proved in the Customs proceedings and accordingly the Customs proceedings against the petitioner was dropped. The Collector of Central Excise however, confiscated the said 111 tollas 11 annas of gold under Section 71(1) of the Gold Control Act, 1968 and released gold sovereigns and imposed a fine of Rs. 1,000/- on the petitioner and his son, Gopal Shaw. The Gold Control Administrator held that contravention of Section 8(1) of the said Act was established. The revisional application preferred by the petitioner was rejected by the Special Secretary, Government of India. Thereafter, the petitioner moved an application under Article 226 of the Constitution challenging the said order of the Special Secretary of the Govt. of India. The said application was numbered as C.R. No. 5969 of 1981. By the judgment dt. 24th June, 1986 this court directed the Appellate Tribunal which was the revisional authority at the material time to consider as to whether the petitioner should be given option to pay fine in lieu of confiscation of gold. The Court set aside the order of the revisional authority and directed that the Tribunal shall not take into account any of the findings of the revisional authority and the Tribunal should decide the case on merits. Pursuant to the said order of this Court, the Tribunal granted personal hearing to the petitioner. The Appellate Tribunal in its order held that contravention of Section 8(1) of the Act is of a serious nature. The Tribunal affirmed the finding of the Collector for absolute confiscation and held on the facts of this case, the gold should not be released on payment of redemption fine. This order of the Appellate Tribunal has been challenged in this proceeding.

(3.) The finding of the Tribunal has been assailed as erroneous. The question relating to payment of redemption fine in lieu of confiscation of gold was not before the Collector. This Court by the order dated 24th June, 1986 directed the Tribunal to decide the case on merits. Accordingly, the Tribunal ought not to have taken into account the finding of the Collector in rejecting, the prayer of the petitioner upon payment of redemption fine. The ground which weighed with the Tribunal is that contravention of Section 8(1) of the Act is of a serious nature. The petitioner, admittedly, did not take my declaration in respect of the primary gold as enjoined in Section 8(1) of the Act. It is because of the failure of the petitioner: to make the declaration, the goods are liable to be confiscated. Although there might be contravention of Section 8(1) of the Act, but it does not necessarily follow that the confiscation should be absolute and redemption should not be allowed even upon payment of fine. Although the Tribunal rejecting the prayer of the petitioner relied on the order of the Collector, but the Collector did not decide in his order as to whether the petitioner should be allowed to redeem the gold upon payment of fine. The order of the Collector was, therefore, not of any relevance in deciding as to whether redemption fine should be granted or not. The Tribunal should have decided the case without taking into account the order of the Collector.