Customs, Excise and Gold Tribunal - Mumbai
Shri Shantilal M. Jain And Shri Prakash ... vs Commissioner Of Central Excise on 17 February, 2004
ORDER
Shri C. Satapathy, Member (Technical)
1. Heard both sides, Shri G.N.Srinivasan, learned advocate appearing for the appellants challenges the seizure and confiscation of the impugned gold and primarily relies on the ratio of the following two decisions of the Tribunal:-
1) S.K.Chains v. Commissioner of Customs (Prev.)/ Mumbai -2001(127) ELT 415 (Tri.Mum.)
2) S.C.Dey and B.N.Sil & Co. v. Commissioner of Customs (Prev. ), Calcutta 1998 (100) ELT 87 (Tribunal) He contends that the Gold (Control) Act is no longer in force, import of gold has since been liberalized and fineness of the gold alone is not enough to establish that the impugned gold was smuggled. He also relies on the decision of the Hon'ble Delhi High Court in the case of Daga Corporation Pvt. Ltd., New Delhi v. Union of India and Ors. -1983 ELT 2142 (Del.)
2. Shri Bidhan Chandra, learned J.D.R. supports the impugned order and relies on the following case laws:--
i) State of Gujarat v. Shri Mohantal Jitamaijl Porwal and Ors. - 1987 (29) ELT 483 (S.C.)
ii) Y. Janardhan Sait v. Collector of Customs, Trichy - 2002 (139) ELT 406 (Tri.Chennai)
iii) Indru Ramchand Bharvani v. UOI - 1992 (59) ELT 201 (S.C.)
iv) Pukhraj v. D.R.Kohli, CCE, Madhya Pradesh, Vidarbha and Anr.- 1983 ELT 1360 (S.C.)
v) JJ. Jewellers v. Collector of C.Ex. - 1989 (44) ELT 241 (Tribunal)
vi) Ashok Kumar Agarwal v. Collector of C.Ex. --1989(41) ELT 454 (Tribunal) He particularly draws attention of the Bench to the decision of the Apex Court in the case of State of Gujarat (Supra) where it has been held that Court can not sit in appeal whether or not the official concerned had seized the goods in reasonable belief but should accept the "reasonable belief" irrespective of the fact that the Court might not have entertained the same belief. He also relies on the same judgment to state that when gold of high purity was seized in the reasonable belief that it was smuggled gold, burden of proof shifts to the person from whom it was seized to establish that it was not smuggled gold in view of the provisions of Section 123 of the Customs Act, 1962. He further points out the Apex Court's view expressed in the said decision that iaw declared by the said Court was binding on the High Court and that it was not open to the High Court to do exactly what it was cautioned against by the Apex Court in the context of Section 1,23 of the Customs Act, 1962.
3. In view of the aforecited decision of the Apex Court and in view of the fact that Section 123 of the Customs Act, 1962 has not undergone any change, the said decision of the Apex Court is binding on all Courts and Tribunals notwithstanding the fact that the Gold (Control) Act has been abolished and that import of gold has been allowed in respect of certain categories of persons. Considering the fact that the seized gold which has been confiscated under the impugned order was of such a fineness which is not manufactured in India and the fact that the same was seized under Section 123 of the Customs Act, 1962 under a reasonable belief that the same was smuggled, it was for the appellants to prove the licit import of the same to escape the clutches of the law. Not having done so, the impugned gold was liable to confiscation and the appellants were liable to penalty. The learned advocate for the appellants has not been able to show why the law laid down by the Apex Court in the context of Section 123 of the Customs Act, 1962, which has not undergone any change, ceases to be good law. I am, therefore, of the view that the said decision of the Apex Court needs to be respectfully followed and not any contrary decision passed by the Tribunal. Consequently, I find no reason to interfere with the impugned order which has been passed in conformity with the legal provisions and the aforecited decision of the Apex Court.
4. The appeals are rejected.
(Pronounced in court on 17-02-2004)