Customs, Excise and Gold Tribunal - Tamil Nadu
Nunna Venkatarao vs Collector Of Central Excise on 17 October, 1986
Equivalent citations: 1987(10)ECR404(TRI.-CHENNAI), 1987(27)ELT515(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. Since the impugned order appealed agianst prima facie is not based on any evidence against the petitioner and since the learned consultant for the petitioner and the learned DR agree to argue the appeal itself to-day taking into consideration the facts and circumstances of this case, prior deposit of the penalty is dispensed with pending disposal of the appeal to-day.
2. This appeal is directed against the order of Collector of Central Excise (Appeals), Madras dated 29.1.1986. The original order has been passed by the Deputy Collector of Central Excise, Guntur on 22.8.1985 absolutely confiscating 2 pairs of bangles weighing 47.7 grams under Section 71(1) besides a penalty of Rs. 4,400/- under Section 74 of the Gold Control Act, 1968 (hereinafter referred to as the Act). The impugned order of the Collector of Central Excise (Appeals) dated 29.1.86 is not one on merits but one rejecting the appellant's appeal under Section 82A of the Act for non-deposit of the penalty. Normally I would be inclined to remit the matter back for reconsideration if the original order is found to be not legally sustainable but in the peculiar facts and circumstances of this case when the original order passed against the appellant is not based on any evidence at all, 1 am inclined to think that on considerations of justice, equity and fairplay the appeal should be disposed of on merits without subjecting the appellant to the hardship and ordeal of another enquiry before another authority.
3. On 13.3.1985 at about 4 P.M. the Inspectors of Central Excise, Gold & Customs, Preventive Unit, Hqrs. Guntur visited the business premises of one Bhavani Jewellers at Vijayawada. At that time the appellant was found to be present in the shop and search and examination of the appellant by the authorities resulted in the recovery of 2 pairs of bangles weighing 47.7 grams from his pant pocket. The gold bangles were of 20 ct. purity totally valued at Rs. 8,825/-. The bangles were seized by the authorities and proceedings instituted thereafter under the Act ultimately culminated in the original order of adjudication of confiscation and imposition of penalty by the Deputy Collector of Customs and Central Excise, Guntur as referred to supra.
4. Shri Parthasarathy, the learned consultant appearing for the appellant at the outset submitted that in the instant case no offence has been set out against the appellant at all in the show cause notice and the appellant has been penalised only on the ground that the appellant was in possession of 2 pairs of bangles and there is absolutely no evidence whatever against the appellant either adverted to or relied upon by the adjudicating authority in effecting confiscation of the appellants bangles absolutely and imposing a penalty under the Act.
5. Shri Vadivelu, the learned DR while fairly conceding that there is no evidence at all against the appellant for sustaining the finding of the adjudicating authority, the Tribunal may remit the matter back to the lower appellate authority for consideration of the appeal on merits according to law inasmuch as the lower appellate authority has not disposed of the issue on merits.
6. As indicated earlier I feel it would not be proper and fair or just 'in the peculiar facts and circumstances of this case to drive the appellant to face another enquiry before another authority when the original order of adjudication is liable to be set aside on the ground that no ray or scintilla of evidence is set out against the appellant in bringing home any charge of contravention under any provisions of the Act. Admitting the case of the department to be absolutely true even then the appellant cannot be said to have contravened any provisions of the Gold (Control) Act in the facts and circumstances of this case. This is a case where according to the department the appellant was found present at about 4 PM on 13.3.1985 in the jewellery shop of M/s. Bhavani Jewellers at Vijayawada. By effecting search the authorities have recovered 2 pairs of bangles totally weighing 47,7 grams of 20 ct. purity from the appellant's pant pocket, the authorities effected seizure of the same. I am at a loss to understand as to how the authorities would be entitled to effect seizure of 2 pairs of bangles under the Act which the appellant was having in his possession.
7. Mere possession of 2 pairs of bangles of 20 ct. purity totally weighing 47.7 grams would not make for any contravention or offence under the Act at all. There is nothing on record even to remotely indicate that the authorities had any reason to believe that there was any contravention by the appellant in respect of the said bangles so as to entitle them to* effect seizure of the same on any reasonable belief. The very seizure is therefore totally without jurisdiction and against law. I have carefully gone through -the show cause notice issued in this case. No specific contravention has been set out at all in the show cause notice. Para 5 of the show cause notice dealing with the alleged contravention of the appellant merely states that the appellant has "contravened the provisions of the Gold Control Act, 1968". Nothing is stated about the nature of contravention or section of the Act under which the appellant has committed contravention. Even coming to the original order of adjudication I do not find even a ray of evidence set out against the appellant bringing home any charge of contravention. Immediately on seizure of the bangles in question the appellant has only given a statement before the authorities that the bangles were brought by him for the purpose of repairs and there is rib evidence contra. The adjudicating authority has not specifically discussed or set out any evidence against the appellant or the nature of contravention committed by the appellant under the Act. It is worthwhile to extract verbatim the observations of the adjudicating authority to highlight the point I have set out. The adjudicating authority has observed :
"As regards, the gold jewellery weighing 47.7 grams valued at Rs. 8,825/- found on the person of Shri N. Venkata Rao, it was not seized from him when he was in possession of it in his house or while has purchasing, it from an authorised goldsmith after remaking. It was found on his person when he was inside the premises of M/s. Bhavani Jewellers and he himself had admitted that he had already deposited a primary gold piece weighing 1.7 grams to Shri Bhaskar Rao for some possible future use. He had therefore admitted his connections with Shri Bhaskara Rao who was dealing in gold in an unauthorised manner. I have therefore no hesitation in concluding that these bangles weighing 47.7 grams also belong to Shri Bhaskar Rao who had either sold to Shri Venkat Rao or had engaged the latter to deliver the jewels to some other party who had ordered for it. I am therefore of opinion that those two bangles weighing 47.7 gms were also involved in contravention of Gold (Control) Act, 1968 and. liable for confiscation under Section 71(1) of Gold (Control) Act, 1968 and Shri N. Venkata Rao for being in possession of jewellery in contravention of same Act, is liable for penalty.
I have no hesitation to hold that the above observations of the adjudicating authority would not make for or bear out any act of contravention on the part of the appellant under law. In the peculiar circumstances of this case and for the reasons given above the original order of the adjudicating authority referred to supra is set aside and the appeal is allowed.