TaxTMI 
TaxTMI 
1983 (11) TMI 288
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....ands transferred to the Tribunal under Section 82K of the Gold Control Act, 1968. 2. Shri S.K. Roy, Bar-at-law the learned authorised representative has appeared on behalf of the appellant. He has stated that the order passed by the Collector of Customs is bad in the eyes of law as per provisions of Section 73 of the Gold Control Act. The Collector has not given any option to redeem the gold after payment of fine. He has further submitted that three cut pieces of gold recovered from the appellant, were used as deities and smeared with Sindhur. One side of the piece is polished. He has further pleaded that these gold pieces were brought by Mrs. Arya from her parents and it cannot be said that these pieces are broken pieces of ornamen....
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....ed that since these three gold pieces were articles and as such no declaration was necessary and the same should be released. In the alternative, he has submitted that the penalty should be reduced from Rs. 3,000 to Rs. 472 in view of the provision of Section 73 that the penalty cannot exceed the value of the gold confiscated. 3. Shri B. Bhowmick, Junior Departmental Representative has appeared on behalf of the revenue and has submitted that revenue's case is covered by Section 74 of the Gold Control Act and as per Section 74, the penalty may be five times of the value of the gold or Rs. 1,000 whichever is more irrespective to its confiscation. He has also submitted that on page 9 of the order of the Collector, he has observed that ....
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....ms. These are not idols. He has prayed that since these are used for puja and is an article, appellant's appeal should be accepted. In the alternative, penalty should be reduced to Rs. 472. 5. After hearing both the sides, the point for consideration is whether the three yellow metal pieces recovered from the appellants are articles under Gold Control Act or not. The judgments quoted by the learned authorised representative do not help him as in those cases, gold coins were seized. But in these cases, three gold pieces were seized and they are not coins. The learned authorised representative's argument is that the order is bad as no option of fine in lieu of confiscation given to the appellant. In Section 73, the word used is "may".....
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....articles means invoking the provisions of said Section 16(5) of the Gold Control Act. Section 16(5) of the Gold Control Act is reproduced as under : "Section 16(5). No declaration referred to in sub-section (1) or sub-section (3) shall be required to be made : (a) in relation to article, unless the total weight of articles owned, possessed, held or controlled by :- (i) a minor, who is not a member of a family, exceeds twenty grammes, (ii) an individual (other than a minor), who is not a member of a family, exceeds fifty grammes, (iii) a family, exceeds fifty grammes, (iv) any person referred to in clauses (b) to (f) and (h) to (m) of sub-section (2), exceeds fifty grammes; (b) in relation t....
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.... Smearing with sindhur will not change the character of gold. The definition of primary gold as per provisions of Section 2(r) of the Gold Control Act, 1968 is fully covered. I hold that the three pieces of gold are of primary gold and not articles and the appellant does not get the benefit of Section 16(5) of the gold Control Act. Since it is primary gold, the provisions as to the declaration under the Gold Control Act are mandatory. I also hold that it is not mandatory for the lower authorities to give an option to pay fine in lieu of confiscation as the legislature has used the word `may' in Section 73. Section 73 is reproduced as under : "Whenever any confiscation is authorised by this Act, the officer adjudging it may, subject to su....