1987 (4) TMI 230 - AT - Central Excise

Appellate tribunal remands case to Collector for fresh consideration, stresses due process.

The appellate tribunal set aside the order and remanded the case to the Collector for a fresh consideration of all facts and evidence, emphasizing ... Seizure and confiscation Issues:- Validity of show cause notice referring to abrogated rules- Allegations of statements recorded under threat and intimidation- Non-production of G.S.13 register during visit by Excise Officers- Confiscation of 3rd party pawned items without proper notice- Failure to consider entries in G.S.13 register and customer presence during hearing- Confiscation of ornaments without proper notice to the owner- Acceptance of pre-authenticated sale vouchers by the departmental officersAnalysis:The appellant, a certified goldsmith, challenged the handling of the case by the department, alleging a strange manner of operation. The show cause notice referred to Defence of India Rules, 1962, which were abrogated in 1968, but it was acknowledged that this technicality did not invalidate the notice. The appellant claimed that statements were recorded under duress during seizure, which was denied by witnesses. The defense highlighted the maintenance of G.S.13 register, although not produced during the visit due to ongoing work, but presented on the day of seizure. The appellant was also accused of money lending against pawned ornaments under the U.P. Government's certificate.The appellant argued that under Section 71 of the Gold (Control) Act, confiscation cannot be imposed on 3rd party pawned items, including those from M/s. Sohan Lal & Sons, supported by pre-authenticated sale vouchers. The appellant stressed that all items were properly recorded in the G.S.13 register, and all owners were present during the hearing, which they believed was not adequately considered by the lower authorities. The appellant contended that confiscation without written notice to the owners, informing them of the grounds, was improper, citing relevant case law.Upon careful consideration, it was noted that the absence of the G.S.13 register during the initial visit was a crucial point, with conflicting claims regarding its subsequent presentation. The Collector's failure to address this issue was highlighted. The Collector's assertion that new entries were made post-seizure raised questions about the authenticity of the register and the lack of investigation into the ownership of the gold items. The failure to ascertain the names and addresses of persons from the register and the lack of clarification on the acceptability of pre-authenticated sale vouchers were also noted.In light of the above, the appellate tribunal set aside the order and remanded the case to the Collector for a fresh consideration of all facts and evidence, emphasizing adherence to due process. The appeal was allowed by remand, signaling a need for a more thorough examination of the issues raised during the proceedings.