Customs, Excise and Gold Tribunal - Delhi
Abdul Gaffar vs Collector Of Customs on 8 September, 1992
Equivalent citations: 1993ECR521(TRI.-DELHI), 1993(63)ELT465(TRI-DEL)
ORDER N.K. Bajpai, Member (T)
1. This is an application on behalf of the Collector for taking additional evidence on record on the ground that he has come in possession of this evidence after the adjudication order was passed and this additional evidence is of "utmost importance" for the respondent-Collector. The additional evidence consists of a statement of Shri Tejmal Gang dated 13-5-1987, another statement of Shri Abdul Sattar dated 24-4-1984, two declarations and a report of the hand writing expert about the authenticity of a Will which was referred to in the adjudication order. While Shri Rakesh Bhatia, the learned SDR submitted that since the additional evidence will enable the Tribunal to ascertain the truth and should therefore be admitted, Shri Harbans Singh, learned Counsel for the appellant strongly opposed the prayer on the ground that an altogether fresh case is sought to be made against the appellant by introducing additional evidence at this stage. The Learned Counsel also submitted that while the impugned order was issued on 6-11-1989, the hand writing expert's report about the authenticity of the Will is dated 15-9-1988 and Shri Tejmal Gang's statement is dated 13-5-1987 - which means that all these documents were available long before the adjudication order was passed. So far as Shri Tejmal Gang's statement is concerned, argued Shri Harbans Singh, it was known to the adjudicating authority but he did not make use of it and the Department is now pressing to rely on it. He said that this was not permissible under the law. He also referred to the provisions of Order XLI Rule 27 of the Code of Civil Procedure which regulates the production of additional evidence in Appellate Courts and submitted that the evidence sought to be introduced did not pass the tests and criteria prescribed in this provision. He also submitted that the additional evidence must be decisive and conclusive in character in order to be admissible and this could not be said to be the case in the present proceedings.
2. We have carefully considered the request for taking the additional evidence on record and observe that while the proceedings were in progress before the Collector, Shri Abdul Gaffar had addressed a letter dated 3-11-1987 to the Commissioner of Income-tax with a copy to the Collector claiming the ownership of the seized gold pieces recovered from the house of Shri Tejmal Gang.
3. Relevant portions of para 3.2 of the impugned order which deals with this aspect are reproduced below :
"...In between one Abdul Gaffar of Bhilwara addressed a letter which was dated 3-11-1987 to the Commissioner of Income Tax with a copy to the Asstt. Collector Central Excise and Customs, Ajmer, claiming ownership of the seized gold pieces recovered from the house of Tejmal Gang. On the basis of this letter, it appears the Customs officers proceeded to record the statement of Abdul Gaffar, even before recording the statement of Tejmal Gang, from whose house the gold had been recovered. Abdul Gaffar was reported to have produced a Will allegedly executed by his brother, late Abdul Sattar which apparently disclosed that the recovered gold pieces belonged to late Abdul Sattar and kept with Himmat Singh for safe custody had been bequeathed to his minor son. It appears the Will indicated that the gold was handed over to Himmal Singh on 30-6-1986 and the Will was executed on 24-7-1986 and Abdul Sattar died in S.M.S. Hospital, Jaipur of a serious liver disease on 30-7-1986. The place of execution of the Will was not shown in the Will, The version of Abdul Gaffar was corroborated by the wife of Late Abdul Sattar."
4. It will appear from the above that the Will of late Abdul Sattar was produced by Abdul Gaffar during the proceedings and, based on this document, the Customs officers recorded the statement of Abdul Gaffar and conducted further enquiries. Since the Will was submitted during the proceedings claiming the ownership of the gold, the authenticity or otherwise of the Will becomes a relevant consideration. It transpires that the Income-tax authorities had also gone into this matter and certain Declarations were made before them under the Income-tax Act which became available to the respondent-Collector only on 25th March, 1990 and attested copies were supplied on 3rd July, 1990. On 11th July, 1990 a miscellaneous application was filed before the Tribunal with the prayer that these documents may be allowed to be taken as additional evidence for the purpose of deciding the appeal before us. Having considered the relevance of the additional material in general, we now proceed to examine the documents one by one to see whether they can be permitted to be taken on record.
5. The first document is the statement dated 13-5-1987 of Shri Tejmal Gang. This statement was recorded by the Asstt. Commissioner of Income tax (Investigation) Jodhpur in connection with the proceedings instituted by the Income-tax authorities. Shri Harbans Singh, Learned Counsel, had objected that it should not be allowed to be taken on record because the statement was available to the customs authorities and they had chosen not to rely upon it in the proceedings. For this purpose he had referred to the statement dated 15-5-1987 recorded by the Assistant Director of Inspection, Income-tax, in which there is a reference to the statement dated 13-5-1987 in Question No. 5. His contention was that the statement dated 14-5-1987 was relied upon by the Department and figures at Serial No. 13 of the list of documents enclosed with the show cause notice and, therefore, the authorities could have also relied upon the statement of 13-5-1987 if they so chose to do at that stage. Not having done so at that time, they are prevented from doing so at this stage. We do not think that this is a valid argument. Inasmuch as the question of the authenticity of the Will having been brought before us at this stage, all connected material should be permitted to be brought on record. We therefore consider that the statement dated 13-5-1987 of Shri Tejmal Gang should be permitted to be brought as additional evidence.
6. The next two documents are Declaration of Smt. Nazma, wife of Late Abdul Sattar and Declaration of Shri Mohammed Farzan. We observe that these Declarations were given to the Income-tax authorities on 2nd March, 1990, whereas the adjudication order was passed on 6-11-1989. The Declarations being subsequent to the passing of the adjudication order, should not be allowed to be taken on record. The fourth document is a statement dated 24-4-1984 of Shri Abdul Sattar recorded by the Income Tax Officer, Bhilwara, which gives details of his family and his assets and is relevant for the purpose of determining the authenticity or otherwise of the Will. It is therefore allowed to be taken on record. The fifth document is copy of a letter written by Smt. Nazma to Regional Manager, Bank of Baroda, Ajmer which refers to the Will as a forgery. Smt. Nazma is the widow of Shri Abdul Sattar, brother of Shri Abdul Gaffar, who has produced the Will laying a claim on the gold. It also questions about the authenticity of the Will and is therefore relevant for purposes of the present proceedings. It is therefore allowed to be taken on record. The sixth document is the copy of proforma of means and standing of Shri Abdul Sattar given to the Bank of Baroda on 4-10-1982 and mentions about the list of deposits of his elder brother Shri Abdul Sattar and his family members. Being a connected matter, this is also allowed to be taken on record. The seventh and the last document is photocopy of a report dated 15th September, 1988 from Shri Krishna Charan of Jaipur, Examiner of Questioned Documents about the Will of late Abdul Sattar and is relevant for consideration of the matter before us.
7. It however appears from the report that the Examiner of Questioned Documents has expressed his opinion in the following words :-
"The above opinion is my prima facie opinion. A detailed final opinion can be given after examinations of the original document, The Will".
8. Since the opinion is based on examination of a photocopy of the document, it expresses not a conclusive view but a prima facie view. Shri Harbans Singh had submitted before us that such additional evidence as is not conclusive and decisive in character is not admissible. He had referred to Mulla's commentary on Code of Civil Procedure which refers to the decision of the Madhya Pradesh High Court in the case of Sobharam Tikaram and Ors. Plaintiffs v. Rajkumar Munnalal and Ors. Defendents AIR 1959 MP 118. We accept Shri Harbans Singh's contention and disallow the document.
9. Thus, having looked into all the seven documents individually, listed in the index enclosed with the miscellaneous application, we consider that four of them being relevant to the matter before us, they should be allowed to be brought on record while the two Declarations being subsequent to the adjudication order, and the Handwriting Expert's opinion cannot be allowed to be taken on record. Needless to say that the appellant would be permitted to produce material in rebuttal of the evidence which has been allowed to be brought on record by us.
10. It is necessary to refer to Order XLI Rule 27 of the Code of Civil Procedure to which Shri Harbans Singh, Learned Counsel, had made a reference during the hearing. We consider that the documents sought to be brought as additional evidence are fully covered by the exception contained in the aforesaid Rule. This evidence was not within the knowledge of the respondent-Collector having become available to him only in March, 1990, after the adjudication order had been passed on 6-11-1989 and, as we have seen, is relevant to the matter before us.
11. As a result, the application is allowed to the extent indicated in para-9.
(N.K. Bajpai) Technical Member Date: 29-4-1992
12. [Order per: G.P. Agarwal, Member (J)]. -1 have had the advantage of going through the proposed order passed by my learned brother, Shri N.K. Bajpai, Technical Member. However, I would like to dispose of the present application as follows :-
12.1 By the present application purporting to be under Rule 23 of the CEGAT (Procedure) Rules, 1982 the respondent intends to produce the following documents as additional evidence -
1. Statement of Tejmal Gang dt. 13-5-1987
2. Declaration of Smt. Nazma W/O Late Sh. Abdul Sattar at Mandal, Distt. Bhilwara written by her father Shri Yakub Khan.
3. Declaration by Shri Mohammad Farzan S/O Shri Yakub Khan and brother-in-law of Late Shri Abdul Sattar.
4. Statement of Shri Abdul Sattar dated 24-4-1984 recorded by Income Tax Officer, Bhilwara.
5. Copy of letter written by Smt. Nazma addressed to Regional Manager, Bank of Baroda, Ajmer.
6 Copy of proforma of means & standing signed by Late Shri Abdul Sattar dated 4-10-1982.
7. Report of Shri Krishna Charan, Handwriting expert.
13. Arguing on the application Shri Rakesh Bhatia, learned SDR, submitted that the aforesaid documents are of utmost importance as they go to prove that the Will, purported to have been executed by Late Shri Abdul Sattar dated 24-7-1986 is a forged one. In reply, the learned counsel for the appellants, Shri Harbans Singh, strongly opposed the prayer and submitted that the additional evidence sought to be produced must be conclusive in character and free from suspicion and cited the case of Sobharam Tikaram and Ors. v. Rajkumar Munnalal and Ors., AIR 1959 Madhya Pradesh 118. He also took us through the said Rule 23 of the CEGAT (Procedure) Rules, 1982 and also to Rule 27 of Order XLI of the Code of Civil Procedure which regulates the production of additional evidence in Appellate Courts and submitted that the additional evidence sought to be introduced must pass the test and criteria prescribed therein. It was also contended by him that it is strange case where the respondent has tried to introduce additional evidence after passing the impugned Order against the appellants to built up a new case. During the arguments, he took us through the impugned Order-in-Original as well as the Misc. Application in hand.
14. We have considered the submissions. Before we proceed to consider the rival contentions raised by both sides, it would be useful to reproduce Rule 23 of the CEGAT (Procedure) Rules, 1982 which provides for the production of additional evidence so far as it is relevant for the purpose of the present application. The said Rule runs thus :-
"23. Production of additional evidence - (1) The parties to the appeal shall not be entitled to produce any additional evidence, either oral or documentary, before the Tribunal, but if the Tribunal is of opinion that any document should be produced or any witness should be examined or any affidavit should be filed to enable it to pass orders or for any sufficient cause, or if the adjudicating authority or the appellate or revisional authority has decided the case without giving sufficient opportunity to any party to adduce evidence on the points specified by them or not specified by them, the Tribunal may for reasons to be recorded, allow such documents to be produced or witnesses to be examined or affidavits to be filed or such evidence to be adduced.
(2) xxxxxxxxxxxxxxx (3) xxxxxxxxxxxxxxx (4) xxxxxxxxxxxxxxx"
15. From a plain reading of the said Rule, it is clear that, no party is entitled to produce any additional evidence except where the Tribunal is of opinion that -
(1) any documents should be produced/filed to enable it to pass orders, or for any sufficient cause; or (2) if the adjudicating authority had decided the case without giving sufficient opportunity to any party to adduce evidence.
16. Now, keeping in view the aforesaid provision, I turn to the facts and circumstances of the case to decide as to whether the additional evidence sought to be produced is to be allowed or not. It was the case of Revenue that as a result of search of the residential premises of one Shri Tejmal Gang from 14-5-1987 to 16-5-1987, the Income Tax Officers recovered certain primary gold pieces, some of them having the markings indicating their foreign origin. In his statement recorded by the Income Tax Officers the said Shri Tejmal Gang admitted the recovery. Thereafter, it appears that the seized gold pieces were taken over by the Central Excise and Customs Authorities on 29-10-1987 from the Income Tax Officers under a fresh Panchnama drawn by the Customs Officers for effecting seizure of gold pieces. It appears that after taking over the gold pieces, the Customs Officers recorded the statement of Shri Tejmal Gang and one Shri Abdul Gaffar who addressed a letter dated 3-11-1987 to the Commissioner of Income Tax with a copy to the Assistant Collector, Central Excise and Customs, Ajmer, claiming ownership of the seized gold pieces recovered from the house of Shri Tejmal Gang. In the endorsement copy, he stated that it is understood that the seized gold has been handed over to you (Assistant Collector of Customs, Ajmer) by the Income Tax Department and as the gold belonged to late Shri Abdul Sattar and now belongs to his minor son Shri Abdul Mehraj (in terms of the Will) the same may kindly be noted and the gold returned directly to us and not to Shri Himmat Singh Gang s/o Shri Tejmal Gang. He also enclosed a copy of the Will along with a copy of the letter dated 2nd October, 1987 addressed to the Commissioner of Income Tax. On receipt of this letter, the Customs Officers recorded the statement of Shri Abdul Gaffar. Shri Abdul Gaffar also produced a Will said to have been executed by his brother Late Shri Abdul Sattar which apparently disclosed that the seized gold pieces belonged to Late Shri Abdul Sattar and kept with Shri Himmat Singh son of Shri Tejmal for safe custody had been bequeathed to his minor son. It appears that the Will also indicated that the gold was handed over to Shri Himmat Singh on 30-6-1986 and the Will was executed on 24-7-1986. It also appears that Shri Abdul Sattar died in hospital on 30-7-1986.
The statement of Shri Tejmal Gang was also recorded under Section 108 of the Customs Act by the Customs Authorities on 26-11-1987 wherein inter alia he disputed the facts recorded in the Panchnama prepared by the Income Tax Officers at the time of seizure and also the correctness of his statement recorded by the Income Tax Officers immediately thereafter. It further appears that thereafter the Customs Officers appeared to have contacted Shri B.R. Meena, Assistant Director of Income Tax, who had headed the search party and recorded the statement of the persons concerned under Section 132(4) of the Income Tax Act and enquired about the retractions made by Shri Tejmal Gang and the claims made by Shri Himmat Singh and Shri Abdul Gaffar. It appears that the Assistant Director of Inspection, Income Tax, confirmed that the Panchnama and the statements were recorded correctly and the subsequent version held out by Shri Tejmal Gang and others was clearly an afterthought (see para 3.5 of the impugned Order). During investigation, statements of various persons were recorded and Shri Abdul Gaffar at each and every stage asserted the right of ownership on the strength of the said Will making it clear that, if any doubt is felt regarding the genuineness of the Will it may be verified adding that it was acted upon since the death of the testator, that is to say, Shri Abdul Sattar and produced the various Government records to prove that the Will was acted upon and accepted by the authorities concerned in the past. As a sequel thereof, Show Cause Notices calling upon the noticees to Show Cause as to why the seized gold be not confiscated and penalty be not imposed under the provisions of the Customs Act and the Gold (Control) Act were not only issued to Shri Tejmal Gang and Shri Himmat Singh but also to Shri Abdul Gaffar since he was claiming the ownership of the recovery of the gold. In reply all the said two persons, namely, Shri Tejmal Gang and Sh. Himmat Singh Gang contested the Show Cause Notice and corroborated the version of Shri Abdul Gaffar that the seized gold was bequeathed in favour of Shri Abdul Mehraj, minor son of Shri Abdul Gaffar on behalf of Sh. Abdul Gaffar, it was contended that seized gold belonged to Late Shri Abdul Sattar and has been bequeathed to his minor son (that is to say Shri Abdul Mehraj who is appellant herein through his guardian Shri Abdul Gaffar) as per the Will already produced. Request for cross-examination of Income Tax Officers concerned was also made. However, it appears that the Collector of Central Excise and Customs, Jaipur, who had adjudicated the present case thought it proper to pass the impugned Order-in-Original determining the liability of the seized gold for confiscation only observing as follows :-
"5.1 ...After carefully considering the various arguments advanced by the advocates, I am of the view that the penal liability of Tejmal Gang and Himmat Singh Gang could be conclusively determined, only after cross-examination of ADI, Income Tax is completed. As such, it is necessary that only part order is issued at present, tor determining the liability of the seized gold for confiscation. As such in this Order, I propose to confine myself to an examination of the issue of alleged liability of the seized gold for confiscation under Section 111(d) of the Customs Act, 1962 and under Section 71 of the Gold (Control) Act, 1968. I shall determine the penal liability of the opponents at later date, after cross-examination of the Assistant Director of Inspection, Income Tax is completed."
16.1 After observing as aforesaid he passed the following orders :-
"6. I pass the following part order :
(a) I confiscate absolutely 121 gold pieces bearing markings indicating their foreign origin and of 24 carat purity, weighing 6890.500 Gms (net) under Section 111(d) of the Customs Act, 1962 as amended and under Section 71(1) of the Gold (Control) Act, 1968, as amended;
(b) I confiscate absolutely under Section 71(1) of the Gold (Control) Act, 1968, 67 pieces of primary gold having markings of unauthorised refineries and of purity of 23.85 carats and weighing 5557.200 Gms (net);
(c) I reserve orders regarding the liability for confiscation of three British Crown sovereign of gold weighing 24.00 Gms for the reasons recorded elsewhere in this order;
(d) I reserve my orders on the alleged penal liability of Tejmal Gang and his son Himmat Singh Gang and the quantum of such liability, for the reasons recorded elsewhere in this Order."
17. From the facts, as narrated above, it is clear that it is not the case of the respondent for seeking the permission to produce the additional evidence that no opportunity was given to the respondent to adduce the said evidence, nor it was argued before us by the learned SDR. Even in the application in hand it is not the case of the respondent that no opportunity was given to the respondent to adduce the evidence. Hence I have to see as to whether the additional evidence sought to be produced by the respondent should be allowed to be produced (a) to enable the Bench to pass orders, or (b) for any other sufficient cause. The general principle is that the Appellate Court should not travel outside the record of the Lower Court and the said Rule 23 is an exception to the said general rule, as stated above. In other words, the parties are not entitled, as of right, to the admission of additional evidence and it is for the Court to decide as to whether the additional evidence sought to be produced is required to enable it to pronounce judgment or for any substantial cause. At this stage, it would be advantageous to reproduce sub-rule (b) of Rule 27 of Order 41, C.P.C., since it was relied upon by the learned counsel for the appellants stressing that Rule 23 of the CEGAT (Procedure) Rules, 1982, as extracted above, also employs the identical expression relating to the production of additional evidence in the Appellate Court -
"27(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But If -
(a) xxxxxxxxxxxxxx (aa) xxxxxxxxxxxxxx
(b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) xxxxxxxxxxxxxx"
18. Interpreting sub-rule (b), the Calcutta High Court In the goods of Premchand (1894) 21 Cal. 484, 486 observed that "the admissibility of additional evidence is made to depend, not upon the relevancy or materiality to the issue before the Court of the evidence sought to be admitted, or upon the fact whether or not the applicants had an opportunity of adducing evidence at some earlier stage, but upon whether or not the Appellate Court requires the evidence to enable it to pronounce judgment or for any other substantial cause". From this observation, it is clear that the relevancy or materiality of the evidence to the issue is not the criterion while deciding as to whether the additional evidence should be allowed to be produced or not. The word "requires" means nothing more than "needs" or "finds needful" (See : Kessowji Issur v. G.I.P Railway (1907) 31 Bombay 381 and Ganesh v. Ramadeni, AIR 1953 AP 316. In the case of Bombay Corporation v. Lala Pancham, AIR 1965 SC 1008, the Apex Court held that under this Rule the requirement of the Appellate Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the Appellate Court to let in fresh evidence at the appellate stage where even without such evidence, it can pronounce judgment in a case. It does not entitle the Appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In the case of Hurpurshad v. Sheo Dyal, 3 LA. 259, it was held that additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. If cases are remanded for the purpose of allowing parties to make out a fresh case or to improve their case by calling further evidence, there would be no end to litigation. In the case of Nadiar Chand v. Chunder, (1888) 15 Cal. 765, it was observed that the Appellate Court should not allow additional evidence to prove the genuineness of a document held by the lower Court to be a forgery.
Interpreting the expression "or for any substantial cause" appeared in sub-rule (b) (which is identical to our Rule 23) it was held by the Privy Council in the case of Parsotim v. Lal Mohan, AIR 1931 Privy Council 143, that these words refer to the requirement of the Court. In the case of Sunder Lal & Sons v. Bharat Handicrafts (Pvt.) Ltd., AIR 1968 SC 406, it was held that the fact that those in charge of the case in the Lower Court did not realise the importance of the documents which was in their possession, does not amount to "other substantial cause". In the case of Venku Reddi v. Pinchi Reddi, AIR 1956 AP 250, it was held that sub-rule (b) of Rule 27 of Order 41, C.P.C., governs cases where the Court thinks that certain documents are necessary to enable it to make up its mind. It may be that the judgment without the required documents will be against the party if the additional evidence is not allowed to be taken on the record, but that is not the same thing as saying that they are essential to enable a Court to reach a decision and further that the Appellate Court will not ordinarily admit the documents which will necessitate the remand of the case to the trial Court for re-hearing and re-opening of the suit. In the case of Smt. Ashalata Mitter v. Amiya Kumar Dey, AIR 1958 Cal 71, it was held that additional evidence, if allowed to be taken on record would lead to a formal proof of the documents themselves and an opportunity would have to be taken to the other side to adduce evidence in rebuttal then additional evidence should not be admitted at appellate stage. It has been held time and again by the Apex Court that such power should be exercised sparingly. In the case of Shri Madan Mohan Sansthan v. Mt. Munnibai, AIR 1957 Nagpur 15, the Division Bench held that additional evidence sought to be produced must be of a decisive and conclusive character on a vital issue in the case and must be free from suspicion. Hence, where the evidence sought to be adduced is of such a character that if it were admitted the Court will have to try the issue de novo, no fresh trial can be granted for admitting such evidence. Following the ratio of this case, a Division Bench of the MP High Court in the case of Sobharam Tikaram and Ors. v. Rajkumar Munnalal and Ors., supra, held that the need to admit additional evidence on ground of "any other substantial cause" as well must be that of the Court and the evidence sought to be produced must be conclusive in character and free from suspicion.
19. Now turning to the additional evidence which the respondent intends to produce, it is said in the application in hand that all the seven documents are of utmost importance to prove that the Will dated 20-4-1986 is a forged one. From the impugned Order and the evidence on the record, I find that it is admitted to the respondent that Shri Abdul Gaffar came out with the said Will at the earliest and also submitted the copy of the Will vide his letter dated 3-11-1987. Shri Himmat Singh with whom the seized gold was kept by the testator had also filed an affidavit corroborating the said version. In his statement recorded by the Authorities, Shri Abdul Gaffar, also put reliance on the said Will. In reply to the Show Cause Notice he also cited the said Will. Not only this, he also stated in his reply in paragraph (i) (page 2) that "Income Tax Return for the (testator) deceased for the year 1983-84 was filed before the Income Tax Officer, Bhilwara on 29-9-1986 stating that the copy of the said Will dated 24-7-1986 was also submitted with the Income Tax Return. To prove this version he enclosed a copy of the said return with the reply to the Show Cause Notice. In paragraphs (ii), (iii) and (iv) of the reply he also stated that the mining rights of the testator were transferred in favour of Shri Abdul Salam, the brother of the testator. On the strength of the said Will the Loan Account in respect of the truck were transferred against Mrs. Nazma, widow of the testator and Jeep No. RSE-1757, was also transferred in favour of Shri Abdul Salam on the strength of the said Will. It was also stated at page 6 of the reply that the liability for payment of income-tax/wealth tax on the bequeathed property (which includes the seized gold) will have to be discharged out of the value of the seized gold, for notice under the Wealth Tex Act for payment of wealth tax has already been issued to him by the Wealth Tax Officer vide letter dated 24th February, 1988. A copy of the said notice was also enclosed.
From the various letters and the replies and the statement of Shri Abdul Gaffar on the record, I also find that he also requested the investigating authorities as well as the adjudicating authorities to verify the genuineness of the said Will, if they entertain any doubt about it. Besides from the impugned Order, I further find that he treated the minor Shri Abdul Mehraj, (under the guardianship of Shri Abdul Gaffar) as the owner of the seized gold, and therefore, issued notice to him calling upon him to show cause as to why the seized gold be not confiscated. While deciding the liability of the seized gold for confiscation under the Customs Act and the Gold (Control) Act, he also recorded a finding that the seized gold is liable to be confiscation since under Section 123 of the Customs Act, the burden to prove that the seized gold bearing foreign marking was not smuggled into India was on Shri Abdul Gaffar who in the capacity of guardian of Shri Abdul Mehraj claiming the ownership which has failed to discharge (See pura 5.2 of the impugned Order). In paragraph 5.3 of his Order, the Collector while dealing with the argument that the seizure was not effected according to the provisions of the Customs Act, observed that "I, therefore, hold that the belief entertained by the seizing officers in respect of gold bearing markings indicating their foreign origin, was reasonable and well founded in the circumstances surrounding the seizure and the burden was squarely on Abdul Gaffar claiming ownership of the gold on behalf of his nephew to prove that the gold was not smuggled. In paragraph 5.4 while dealing with the question of confiscation of seized gold under Section 71 of the Gold (Control) Act, the Collector observed that "As such, it has to be held that the seized primary gold is liable for confiscation under Section 71 of the Gold (Control )Act, 1968. The argument of proviso clause to Section 71 would come into operation in the light of the facts disclosed in these proceedings, is misplaced and the said gold had been possessed by late Shri Abdul Sattar in contravention of Section 8(1) of the Gold (Control) Act, and the contravention had taken place at the time of obtaining possession and the liability for confiscation had arisen right at the point of time and that liability did not get extinguished merely by death of Shri Abdul Sattar. Illicit possession did not become licit, merely because Shri Abdul Sattar bequeathed his gold to his minor son (that is to say Shri Abdul Mehraj)".
In paragraph 5.5. he also considered the claim of Shri Adul Gaffar for an option to redeem the seized gold and concluded that "I am of the view that the facts of the case establish that the primary gold have markings not indicating their foreign origin are of a purity, which prima facie shows that they have been obtained by melting gold of foreign origin, since gold of this purity was not licitly available in India. As such, I do not see any justification for extending an option under the Gold (Control) Act, 1968 either to Shri Tejmal Gang or to the alleged owner to pay fine in lieu of confiscation." It may be stated for the record that Shri Tejmal Gang and Shri Himmat Singh Gang to whom the notices were issued did not contest the liability to confiscation of the seized gold, that is to say, they never claimed the ownership - a fact recorded by the Adjudicating Authority himself in paragraph 4.3 of his impugned Order. From the narration of these facts and findings, it is clear that, the said Will was set up by Shri Abdul Gaffar as guardian of Shri Abdul Mehraj, right at the beginning. The genuineness of this Will was never doubted by the Adjudicating Authority, on the other hand he believed it to be a genuine document and proceeded to determine the liability of the seized gold to confiscation and also the plea of the appellant that he may be given an option to redeem the seized gold. Thus, at this stage, the respondent cannot be allowed to make out a new case of forgery by producing the said additional evidence in view of the ratio of the judgment laid down in Hurpurshad v. Sheo Dyal, supra, and the respondent also cannot be allowed to lead evidence to prove at this stage that the Will which was never doubted by the Adjudicating Authority to be genuine one was forgery in view of the ratio of the decision rendered in the case of Nadiar Chand v. Chunder, supra. Besides, I have no hesitation in saying that I do not require additional evidence to be produced in this case to enable the Bench to pronounce judgment nor do I think that any substantial cause is made out which would justify an order allowing additional evidence to be let in at this stage. Besides, the documents sought to be produced as additional evidence are not conclusive in character and free from suspicion. It is evident from the impugned Order itself that the Panchnama said to have been prepared by the Income-Tax Authorities and the statements recorded by them were challenged as not correct, and therefore, the appellant as well as the others requested the Collector to allow the cross-examination of the concerned officers. The additional evidence, if allowed to be taken on record would lead to the re-opening of the entire case and the case would have to be remanded for de nova adjudication and an opportunity would have to be given to the appellant herein to adduce evidence in rebuttal. This is not permissible under the law as observed in the case of Venku Reddi v. Pinchi Reddi, supra and Smt. Ashalata Mitter v. Amiya Kumar, supra. That apart, by his impugned Order, the Collector has ordered for the confiscation of the seized gold.
Against this Order of confiscation, the appellant have filed the present appeal and now the respondent by seeking the permission of the Bench to produce the said additional evidence is trying to make its case stronger for confiscating the seized gold. This is again not permissible in law. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the Lower Court. In the case of Kansara Soni Jivaram Khudhu v. Dahibai, AIR 1951 Kutch 36, it was held that, "The Appellate Court can allow a party to adduce additional evidence only if the materials before the Court are not sufficient to enable it to decide the appeal. If the Court permits the party to make up deficiency in evidence noticed by the party after the judgment and make his case stronger it is an illegal exercise of jurisdiction. In the instant case on the point of repetition the respondent after having ordered for the confiscation of the seized gold, on the basis of the evidence available on the record, is trying to produce the said additional evidence to make his impuguned Order stronger by supplementing the evidence since the appellant has challenged his Order before this Court. This in my considered opinion is not permissible as it would amount to illegal exercise of jurisdiction vested in this Tribunal under Rule 23 of the CEG AT (Procedure) Rules, 1982. In this view of the matter, I refuse to take on record not only the three documents listed at Serial Nos. 2, 3 & 7 of the application, that is to say, two declarations and handwriting expert's report, as proposed by my learned brother, Shri N.K. Bajpai, but also the remaining four other documents listed at Serial Nos. 1,4,5 & 6. In the result, the miscellaneous application is rejected.
(G.P. Agarwal) Judicial Member
20. Since there is a difference of opinion between us, as to whether the four documents as detailed out above should be taken on record as additional evidence or not, the case is referred to the Hon'ble President in terms of Section 129C(5) of the Customs Act, 1962 read with Section 81(B) of the Gold (Control) Act, 1968 for determination of the following question :-
"Whether in the facts and circumstances of the case the four documents listed at Serial Nos. 1, 4, 5 & 6, that is to say, Statement of Tejmal Gang dated 13-5-1987, Statement of Shri Abdul Sattar, Copy of letter written by Smt. Nazma and copy of proforma of means & standing be taken on record as additional evidence as proposed by the learned Technical Member or not to be taken on record as additional evidence as proposed by the learned Judicial Member".
(N.K . Bajpai) (G.P.. Agarwal)
Member (T) Judicial Member
The point of difference is referred to Shri PC. Jain Member (T)
Sd/-
Harish Chander.
10-6-1992
P.C. Jain, Member (T)
21. Following difference of opinion has arisen between the Id. Technical Member and the ld. Judicial Member in the present matter :
"Whether in the facts and circumstances of the case the four documents listed at Sl. Nos. 1, 4, 5 & 6, that is to say, statement of Tejmal Gang dated 13-5-1987, Statement of Shri Abdul Sattar, Copy of letter written by Smt. Nazma and copy of proforma of means and standing be taken on record as additional evidence as proposed by the learned Technical Member or not to be taken on record as additional evidence as proposed by the learned Judicial Member".
22. I have heard the ld. SDR Shri Rakesh Bhatia for the applicant-Collector for bringing on record certain additional evidence and have also heard the ld. advocate Shri Harbans Singh for the respondent in this misc. application and the appellant in the appeal before the Tribunal and have also perused the judgments passed by the learned Technical Member and the learned Judicial Member.
23. I am of the view that the judgment passed by the learned Judicial Member is exhaustive and comprehensive and takes into account the various principles pronounced by the Courts in the matter of bringing additional evidence on record in matters before the appellate authority. I entirely agree with the judgment of the learned Judicial Member. I do not think that there is anything that can be added further. The 4 documents on which there is difference of opinion between the two learned Members seek, in my view, to make out a new case for the respondent or make out a stronger case for the respondents. On the basis of the principles set out by the learned Judicial Member in his judgment, this cannot be allowed to be done by the appellate authority. Accordingly, I am of the view that the 4 documents i.e.
1. Statement of Tejmal Gang dtd. 13-5-1987;
2. Statement of Abdul Sattar;
3. Copy of letter written by Smt. Nazma;
4. Copy of proforma of means and standing.
should not be allowed to be taken on record as held by the learned Judicial Member.
Dtd. 28-8-1992 (P.C.Jain)
Member (Technical)
FINAL ORDER
In view of the majority opinion, the application in hand is hereby rejected.