TaxTMI 
TaxTMI 
2014 (1) TMI 279
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....on the petitioner under Section 112 of the said Act of 1962 and a penalty of Rs. 10,000/- was imposed under the said Act of 1968. By the impugned judgment and order of the appellate authority, though the order of confiscation was confirmed, the penalty amounts were brought down to Rs. 15,000/- and Rs. 5,000/- respectively. 2. The Collector of Customs and Central Excise, Pune issued a Show Cause Notice dated 3rd April, 1986 to the petitioner and others. In the show cause notice, it was stated that one Damodhar Ramchandra More lodged a complaint with the police at Kolhapur on 15th October, 1985 alleging robbery of Rs. 1,65,000/-. In the complaint it was stated by the said Shri Damodhar Ramchandra More that foreign marked gold chips were given to him by one Baburao Maruti Deokar of Bombay for delivery to one Dilip Chunilal Parmar of Kolhapur. The amount of Rs. 1,65,000/- represented the sale proceeds of the said foreign marked gold chips received from Shri Dilip Parmar by the said Damodar More. There were total 7 foreign marked gold chips. 3. In the show cause notice it is further stated that it was revealed from the investigation that out of 7 chips, Shri Parmar sold 3 ch....
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....21 from whom he got prepared the said articles which were handed over to the police. In his statement, the petitioner stated that he did not purchase the said articles prepared out of foreign marked gold from Shri Parmar. He stated that the facts stated by him before the police were not true. It is noted in the notice that the petitioner stated that 148.00 grams of gold of Shri Kolekar and 52.00 grams of gold from his stock was given by him to Shri Patankar and he obtained the said articles weighing 200 grams from Shri Patankar. 6. The petitioner replied to the show cause notice by his final reply dated 14th May, 1986. He reiterated that he had not taken the articles from Shri Parmar. He reiterated that he got the said articles prepared from old gold ornaments given to him by Shri Kolekar and by utilizing the gold weighing 52.00 grams out of his stock. He stated that as the police had threatened to arrest him, he had no alternative but to get two grams Walies weighing 200.00 grams prepared and hand over the same to the police. 7. It appears that the case made out by the petitioner was not accepted by the Collector and by the CEGAT and aforesaid impugned orders have been....
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.... meaning of Section 2(r) of the said Act of 1968. He submitted that even in the report of the Mint Master, Government of India Mint Bombay, it is stated that he is unable to offer any comment regarding the origin of the said articles. He stated that apart from the fact that there was no seizure under the said Act of 1962, the articles were not shown to be of primary gold and therefore, confiscation under the said Act of 1968 was uncalled for. 9. The learned counsel appearing for the respondents relied upon a decision of the Division Bench of this Court in the case of Union of India v. Zohar Taherali Dalal [2010 (257) E.L.T. 209 (Bom.)]. He submitted that an efficacious remedy under sub-sections (1) and (3) of Section 130 of the said Act of 1962 was available by way of an application for reference to this Court. He submitted that the Division Bench in the light of the availability of the said alternative remedy declined to entertain the petition under Article 226 of the Constitution of India. He submitted that in the present case, as observed by the Authority, there is a seizure panchanama under the said Acts of 1962 and 1968. He submitted that the seizure is specifically unde....
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....etition which was pending for the period of 13 years cannot be dismissed on the said ground. In the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Others [AIR 1999 SCC 22], the Apex Court held that the jurisdiction of this Court to issue writ is not affected by availability of alternative remedy. It is true that on the date of the impugned order, under the said Act of 1962, the petitioner had a remedy of applying for the reference. In the case of Union of India v. Zohar Dalal (supra) in the facts of the case, this Court found that an objection was raised by the respondents by filing a reply regarding availability of an alternative remedy and, therefore, the petitioner before the High Court applied for converting the writ petition into a Reference Application under Section 130(3) of the said Act of 1962. In the present case, as narrated earlier, in the year 1995 the respondents were heard at the time of admission. Till the final hearing of the petition commenced before this Bench, no such objection was raised by the respondents. Therefore, it will very unjust now to direct the petitioner to take recourse to alternative remedy after lapse of 17 years from the dat....
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....thereunder has been, or is being or is attempted to be, contravened, shall be liable to confiscation. Power to seize the gold is under Section 66 which empowers Gold Control Officer to seize gold when he has reason to believe that in respect of any such gold any provision of the said Act of 1968 has been, or is being or is attempted to be, contravened. 13. At this stage, it will be necessary to make a reference of the decision of the Apex Court in the case of Gian Chand and Others (supra). This was a case where there was a prosecution under Section 167 of the Sea Customs Act against the appellants before the Apex Court for having acquired possession of smuggled gold and for carrying, keeping and concealing the gold to with intend to defraud the Government. This was a case where police had seized certain articles of gold. The Collector of Customs applied to the Court of the learned Magistrate of delivery of gold bars under Section 180 of the Sea Customs Act. Section 178A of the Customs Act reads thus : "178A. (1) Where any goods to which this Section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that t....
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....s a seizure under Section 178. The seizure from the owner of the property under Section 180 is not a seizure under the Act but by a police officer effecting the seizure under other provisions of the law, for instance the Criminal Procedure Code. And that is made clear by appropriate language in the first paragraph of Section 180. Learned counsel for the respondent-State has urged that "the conveyance and deposit" in the office of the Customs authority under the second paragraph of Section 180 also involves a seizure under the Act and for this purpose relied on the meaning of the word "seize" given in Ballantyne's Law Dictionary where it is equated to "taking a thing into possession." This however might be the meaning in particular contexts when used in the sense of the cognate Latin expression "seised" while in the context in which it is used in the Act in Section 178A it means "take possession of contrary to the wishes of the owner of the property". No doubt, in cases where a delivery is effected by an owner of the goods in pursuance of a demand under legal right, whether oral and backed by a warrant, it would certainly be a case of seizure but the idea that is the unilateral act ....
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....he Apex Court observed that unless there was a seizure under the Sea Customs Act, Section 178A thereof will have no application and burden to prove that the gold was not smuggled was not on the accused. The said decision has been followed and applied by the Judicial Commissioner of Goa, Daman and Diu in the case of Union of India v. Kasambhai (supra) and by the Gujarat High Court in the case of Assistant Collector of Customs v. Mukbujusein (supra) to the seizure under the said Act of 1962 and it was held that special rule of evidence under Section 123 of the said Act of 1962 cannot be applied when the police after seizing the goods handed over the same to the Customs Authorities inasmuch as taking custody of goods from the police does not amount to the seizure of the goods under the said Act of 1962. 14. Exhibit-G to the petition is the true translation of the panchanama dated 17th October, 1985. The panchanama shows that the said articles were seized by the Inspector of Customs under a reasonable belief of having contravened the provisions of the said Act of 1962. The said panchanama was drawn by the Inspector of Customs. Thus, in the facts of the case, there was a seizure m....