SHRI RAJABALI HUSSAIN MERCHANT Vs. GOLD CONTROL ADMINISTRATOR

JUDGEMENT

(1.) SHRI Rajabali Hussain Merchant has filed an appeal being aggrieved from the Order passed by the Collector of Customs (Appeals; Bombay vide Order No. S/49 -23/82 GC (Ahmedabad) dated 19.11.82, registered with the registry vide G.C. Bom) A. No. 15 of 1983. Shri Dinkarrai R. Dhorde had also filed an appeal before the Tribunal being aggrieved from the Order No. S/49 -25,82 GC Ahmedabad) dated 9.11.82 passed by the Collector of Customs (Appeals), Bombay.

(2.) BRIEFLY , the facts of the case are that on 24.10.1977, on the basis of an information, the officers of Customs Division, Bhavnagar had visited Room No. 304 of Shri Shakti Guest House, Mali Tehra, Bhavnagar and found S/Shri Rajabali Hussain Merchant and Dinkerrai Ramchhoddas Dhorde to be in occupancy of the said room and had conducted search in presence of three independent witnesses, as a result of which they recovered four pieces of primary gold weighing 576. -00 gms. of 23 carats of purity valued at Rs. i6,500/ - secreted in a specially made jacket put on by Shri Rajabali Hussain Merchant of Bombay. As no satisfactory documents for legal possession and acquisition thereof we/e produced, the same was seized in the presence of independent ranch witnesses under the reasonable belief that the gold was liable to confiscation under the relevant provisions of Gold (Control) Act, 1968 and Customs Act, 1962. Statements of S/Shri R.H. Merchant and Dinkerrai R. Dhorne were recorded under Section 108 of the Customs Act 1962 on the 25th day of October, 1977. A show cause Notice No. XVI1/8 -10/OA/77 dated 14.4.78 was issued to them desiring them to show cause, as they had bought, accepted, or otherwise received and acquired the ownership, possession, custody and/or control of 4 pieces of primary gold totally weighing 5.6.7 grams valued at Rs. 36,500/ - in contravention of Section 8(1) of the Gold Control Act, 1968 and also that the appellant along with two other persons have dealt in gold without obtaining a licence and thereby contravened the provisions of Section 27 of the Gold (Control) Act, 1968. The said show cause notice was in respect of invoking of the provisions of Section 71 of the Gold Control Act, 1968 for confiscation and why penalty under Section 74 should not be imposed on them. The adjudicating order was passed by Mrs. Vijay Zutshi, Deputy Collector of Customs and Centra Excise, Ahmedabad vide Order No. F -XVII/8 -12/A//17 dated 7th July. 1980. The learned Deputy Collector had ordered absolute confiscation of four pieces of primary gold weighing 576.7 gms. valued at Rs. 36,500/ -under Section 71 of the Gold (Control) Act 1968 and had also imposed a personal penalty on Shri Rajabali Hussain Merchant at Rs. 35,000/ - and on Shri Dinkerrai Ranchhoddas Dhorde at Rs. 10,0C0/ -. The said order appears from page 9 to 16 of the Paper Book filed by the appellants. Being aggrieved from the aforesaid order the appellants had filed an appeal before the Collector of Customs (Appeals), Bombay appearing at pages 7 to 8 of the Paper Book of the appellant. Vide order No. S/49 -185/80 GC/op. dated 23.12.80, the learned Appellate Collector of Customs had ordered for the release of gold on payment of redemption fine of Rs. 12,'00/ - subject to the usual conditions of conversion into ornaments and the personal penalty was reduced to Rs. 6000/ - from Rs. 35,000/ -, in the case of Shri Rajabali H. Merchant, whereas in the case of Shri Dinkerrai R. Dhorde, the learned Collector of Customs (Appeals) had held that he was acting as a broker and penalty of Rs. 500/ - was imposed. The Revenue being aggrieved from the abovesaid order, in the case of Shri R.H. Merchant, had filed an application for review proceedings before Government of India, Ministry of Finance, Department of Revenue, New Delhi and Shri Dhorde had also filed a revision application before Govt. of India for squashing the penalty of Rs. 500/ -. The said applications were heard by Shri J. Datta, Additional Secretary to the Government of India who had set aside the orders passed by the Appellate Collector and had directed the Collector of Customs (Appeals) to reconsider both the appeals after giving them an opportunity of oral representation to the parties. As per the directions of the Government of India, Collector of Customs (Appeals) Bombay, had reheard both t e appellants and had confirmed the Order passed by the Deputy Collector of Customs and Central Excise, Ahmedabad. Being aggrieved from the aforesaid order, both the appellants have corne in appeal before us. Both the appeals arise from the same order and for the sake of convenience we are disposing of both the appeals by a consolidated order.

(3.) SHRI D.H. Shah, Advocate has appeared on behalf of Shri Rajabali H. Merchant and Shri Haresh Mehta has appeared on behalf of Shri Dinkerrai R. Dhorde.