Customs, Excise and Gold Tribunal - Tamil Nadu
Y. Janardhan Sait vs Commissioner Of Customs, Trichy on 1 October, 2001
Equivalent citations: 2002(139)ELT406(TRI-CHENNAI)
JUDGMENT
S.L. Peeran
1. This Reference application has been filed by the applicant seeking reference of the following questions of law to the High Court in terms of Section 82B of the Gold (Control) Act, 1968 against the final order No. 919/90 dated 23.10.1990 by which the Tribunal upheld the absolute confiscation of the seized gold of very high purity of 23.9 ct.
1) Whether on the facts and in the circumstances of the case the Tribunal was right in absolutely confiscating the gold when the Collector himself dropped the charges under Customs Act is correct in law?
2) Whether on the facts and in the circumstances of the case the Tribunal was right in not giving option to the petitioner under section 73 of the Gold Control Act is correct in law?
3) Whether on the facts and in the circumstances of the case the tribunal was right in absolutely confiscating of the gold merely on the basis of the retracted statement is correct in law?
4) Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the gold is of foreign origin is correct in law? When no foreign markings are found in the gold under seizure?
5) Whether on the facts and in the circumstances of the case the Tribunal was right in accepting the purity report given by the goldsmith alone, without asseying the same by the chemical examiner of Custom House is correct in law?
2. The findings recorded by the Tribunal in para 5 of the order are reproduced below:-
5. We observe that the gold of very high purity of 23.9 ct. was seized from the appellant and in the statement recorded immediately after seizure he admitted to have obtained this gold out of foreign marked gold and added some silver to reduce the purity of the same. We, however, find that the learned lower authority has held that there was no acceptable evidence that the appellant could have obtained the gold out of foreign marked gold but at the same time has not accepted the version of the appellant that the said gold had been obtained from melting of the old ornaments and that the same had been unauthorisedly acquired and possessed by the appellant in contravention of section 8(1)(i) of the Gold (Control) Act, 1968. The question that has to be examined is whether the version of the appellant that the said gold was obtained out of the old ornaments, as pleaded, is acceptable or not. The learned lower authority has not accepted the version. We agree with him that this gold could not have been obtained out of old ornaments as pleaded. No reason has been given as to why the appellant did not come out with this version at the time when the statement was recorded from him. The retraction of his statement that he obtained the gold out of foreign marked gold was also belated. Without going into the reasoning of the that gold of such high purity could not be obtained in the country as held by the Hon'ble Supreme Court in the case of Mohanlal Jitamalaji Porwal vs. State of Gujarat (1987 (29) ELT 483 (S.C.). The Hon'ble Supreme Court has observed as under:-
"Gold of this purity is manufactured only in foreign countries which have sophisticated equipment."
Even though the appellant has pleaded that these were old ornaments and ornaments of old times were of very high purity, it is not the case of the appellant that the ornaments were 24 ct. purity nor any evidence in this regard has been led. The gold was melted at the silver refinery and it was not shown that the silver refinery was sophisticated enough to purify the gold obtained out of old ornaments to such a high degree of purity. In the circumstances of the case we hold that the gold was not obtained out of old ornaments as been led and this has to be taken to have come out of sources from outside the country. The appellant's version that the ornaments had been bequeathed by his adopted mother and has been kept by Panchatdhars for a long time is baseless as it is not understandable as to why he did not go himself to receive this gold ornaments in case the Panchatdhars wanted to hand over the same. It would have been done in the presence of other persons and not through relative. Atleast the appellant would have been informed as to their intention to hand over the gold to him and some correspondence would have been there between the appellant and the said Panchayatdhars. No such correspondence was also produced before us. In view of this and also that the gold of such purity could not beer obtained out of the old ornaments, as pleaded, the only conclusion that images is that the gold has been obtained out of gold of very high purity which would have been brought into the country from outside. In this view of the matter we hold there is not warrant for showing any leniency in the matter. We, therefore, uphold the order of absoluted confiscation of the gold under section 71(1) of the Gold (Control) Act, 1968 and also the levy of penalty of Rs.25,000 on the appellant under section 74 of the Gold (Control) Act. The appeal is therefore, dismissed.
3. Shri S.Ramesh, learned Counsel for the applicant contends that the gold was not absolutely confiscable in terms of Section 73 of the Gold (Control) Act, 1968 and the applicant should have been given the option to redeem the same on payment of fine in terms of the Act. Therefore, the questions of law framed above or at least the question No. 2 framed therein may please be referred to the High Court.
4. Shri GS Menon, the learned SDR submits that the questions framed are questions of facts and the Tribunal fully upheld the absolute confiscation of the gold as the gold was primary gold with very high purity and the conclusion arrived is that it is smuggled gold. The conclusion arrived at on analysis of the facts and such facts are not referable to the High Court in the facts and circumstances of the case.
5. We notice that the Tribunal has analysed the evidence on record and have come to the conclusion that the seized primary gold weighing 822.800 gms. was primary gold and it was of very high purity and it was primary gold and absolutely confiscable and cannot be redeemed. We find that the conclusion arrived at by the Tribunal is on the basis of the analysis of facts and such question of facts cannot be referred to the High Court for reference. In this view of the matter, there is no merit in the reference application and the same is rejected.
(Dictated and pronounced in open Court)