TaxTMI 
TaxTMI 
2010 (5) TMI 786
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....t the application and dispose of the same in accordance with law. These are the circumstances in which the Reference Application arises today before us. 2. The Tribunal's order, dated 19-9-2006 was passed in pursuance of a remand order of the Hon'ble High Court viz. judgment, dated 20-4-2006 in W.P. No. 2386 of 1988 [2007 (207) E.L.T. 217 (Bom.)]. By the said judgment of the Hon'ble High Court, an earlier order passed by this Tribunal in the respondent's appeal filed under the provisions of the Gold (Control) Act was set aside and this Tribunal was directed to decide on all the issues afresh. In the said judgment, it was inter alia ordered thus : "All contentions of the parties are kept open to be agitated before the Tribunal. We clarify that the remand is not confined to the aspect that has been considered by us above." It was in pursuance of the above remand order of the Hon'ble High Court that this Tribunal passed the aforesaid order dated, 19-9-2006, which is the basis of the present Reference Application. 3. The facts of the case are as summarized below :- A search was conducted at the residential premises of the respondent on 27-3-1974 and the same re....
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....Gold rods were recovered from the personal wooden almirah, which was in his control and possession for more than 28 years and he had filed declaration of gold ornaments weighing 9 kgs. With the department and during the entire search proceedings and statement recorded on spot, he never whispered or uttered denial about not knowing the gold existence in his Almirah? 2. Whether the learned CESTAT was right in holding that the possession of gold in the context of Gold (Control) Act, 1968 meant conscious possession only and nothing else and it did not require any finding as it had been settled by the Hon'ble High Court at para 20 of the Order, dated 20-4-2006 despite the Hon'ble High Court, at para 28(iii) of this Order holding that "all contents of the parties were kept open to be agitated before the Tribunal and further clarifying therein that the remand was not confined to the aspect that had been considered by them [the Hon'ble High Court]? 3. Whether the learned CESTAT was right in holding that no reason was found to disagree with the findings arrived at by the CJM, who held that the primary gold in the form of 12 Gold slabs and 13 Gold rods were not in conscious p....
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....gment of the Chief Judicial Magistrate. The ld. consultant has also invited our attention to paragraphs 15 to 18 of the Hon'ble High Court's judgment, dated 20-4-2006 (remand order). It is submitted that the Hon'ble High Court considered the earlier decision of the Hon'ble Supreme Court on the effect of order of acquittal in the prosecution under Sec. 85(1) (ii) read with Sec. 8(1) of the Gold (Control) Act, on the order of confiscation passed by the departmental authorities under Sec. 71(1) read with Sec. 8(1) of the said Act. In the light of the Hon'ble Supreme Court's judgment, the Hon'ble High Court, in paragraph 18 of its judgment, laid down the criteria for the departmental authority to follow the findings recorded by the Criminal Court in the prosecution of the person concerned. These criteria, which have been referred to as 'guidelines' by the ld. consultant are contained in paragraph 18 of the Hon'ble High Court's judgment, which reads as follows :- "18. In the light of the aforesaid legal position, no doubt is left that the finding of the criminal court may have some effect on the order of confiscation though it is not always that acquittal in the criminal case ip....
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....lows :- "20. The legal position is no more res integra that "possession of gold" in contravention of 1968 Act means 'conscious possession'. The conscious possession of gold in contravention of 1968 Act is an offence for prosecuting under Section 85(1) and also for confiscation under Section 71(1)." Therefore, the second question raised by the applicant does not survive. However, there appears to be some substance in the third question framed by the applicant, though it may not be referable to the Hon'ble High Court in its entirety. The first part of the third question framed by the applicant is whether this Tribunal was right in holding that there was no reason to disagree with the findings arrived at by the Chief Judicial Magistrate who held that the primary gold in the form of 12 gold slabs and 13 gold rods was not in conscious possession of the accused (present respondent). The legal proposition made by the applicant in this context is that the degree or standard of proof required in adjudication proceedings under Sec. 71(1) of the Gold (Control) Act were not the same as that required in criminal proceedings under Sec. 85(1) of the Gold (Control) Act and that the latt....