COMMISSIONER CUSTOMS DEPARTMENT Vs. NIRMALA MITRA

JUDGEMENT

(1.) The short question argued at length and in great details by the legal luminaries can be summarized as to whether the High Court is entitled to apply the provisions of Indian Limitation Act specially Section 29(2) and Section 5 to condone the delay, in an application under Section 130-A of Indian Customs Act made by the party appellant. We are required to explicit what is the implicit and inherent in the provisions of law because the respondent-objector has submitted that the petitioner is not entitled to an order of condonation of delay of three days in making the application for reference.

(2.) The facts necessary for disposal of the present controversy in short are that on 4.11.1950 the CID Branch of Bombay police instituted a case against one S.K. Mitra, husband of the respondent observing that the deceased made certain defalcation of government money. They also seized foreign marked gold bars from the residential premises situate in Bombay. The police case was that out of the defalcated money, said S.K. Mitra acquired moveable and immovable properties. The further allegations were that he acquired the properties between 1941 till September, 1949. He was tried under Section 409, 420, 467 and Section 120-B, read with Section 4d9, 420, 467/471 of the Indian Penal Code. The criminal case was finally decided in 1993. The gold bars which form part of the attachment proceedings in defalcation case No. MJC No. 31 of 1949 before the Judicial Commissioner, Ranchi was disposed of by the order passed on 5.1.1993 and revised on 7.1.1993. Said S.K. Mitra died in 1976, therefore, his widow, the present respondent Smt Nirmala Mitra claims to have inherited the properties including the foreign gold bars. Thereafter the Commissioner of Customs and Central Excise filed Cr WJC No. 69/1990 (R) before the Patna High Court (Ranchi Bench) for possession of the foreign gold bars and the primary gold so that they could proceed under the Customs Act, 1962 and the Gold (Control) Act, 1968. The learned Judicial Commissioner gave liberty to the Central Excise and Customs authority to initiate action under the Customs Act, 1962 in respect of the foreign gold bars. Certain proceedings were thereafter taken. The inventory of foreign gold bars were prepared by the Customs officials and the same were signed by the Assistant Commissioner of Customs and Central Excise, Ranchi. The respondent thereafter informed the Manager of the State Bank of India that inventory of the articles were prepared and duly signed and the same was kept in the sealed box in presence of the parties. The letter was counter signed by the Inspector of Customs and Central Excise. The Assistant Commissioner of Customs and Central Excise vide his letter dated 21.1.1993 informed the respondent that on 18.1.1993 as per the order of the Judicial Commissioner, Ranchi (dated 7.1.1993) the gold of foreign origin was examined for auction under the Customs Act, 1962. It was found by the authorities that the said gold bars were possessed by her in contravention of the various provisions of the Customs Act, 1962, it was ordered that gold of the foreign origin was liable for confiscation under Section 111 of the Customs Act; 1962. A formal detention order was also sent along with the said letter. A formal seizure of the said gold bars was prepared on 4.3.1993. On 2.4.1993 a notice was issued to the respondent to show cause as to why the said gold of foreign origin be not confiscated and penalty be not imposed. The respondents submitted her show cause and after considering the same the Commissioner of Customs, Patna directed absolute confiscation of the foreign marked gold under Section 111 (d) of the Customs Act, 1962 and also imposed a personal penalty against the respondent under Section 112 (b) of the Customs Act, 1962. These proceedings were drawn by the Commissioner, of Customs, Patna in his Adjudication Order No. 12/CC/AD'J/99 and the final order was passed on 9.8.1999.

(3.) The respondent being aggrieved by the said order preferred Appeal No. C-416/99 before the Customs Excise and Gold (Control) Appellate Tribunal (CEGAT), Eastern Bench, Kolkata.