ORDER
S. Kalyanam, Member (J)
1. This appeal is directed against the Order of Collector of Central Excise, Coimbatore, dated 9-9-1986 absolutely confiscating 13 pieces of primary gold totally weighing 2545.480 gms. of 24 ct. purity and valued at Rs. 4,50,549.96 under Section 71 and imposing a fine of Rs. 40,000/- under Section 74 of the Gold Control Act, 1968, hereinafter referred to as the Act.
2. The appellant was intercepted at Coimbatore Railway Station by the Central Excise authorities on 20-2-1983 and a search resulted in the recovery of 13 pieces of primary gold totally weighing 2548.480 gms. of 24 ct. purity. The appellant is not a licensed gold dealer nor a certified goldsmith and could not account for the possession of the primary gold. The primary gold pieces were therefore, seized, by the authorities under mahazar, as per law. The appellant gave a statement before the authorities on 20-2-1983 that he was an employee of M/s. Madanlal Jewellers at Amritsar and the Proprietor of the shop, Shri Madanlal had asked the appellant to transport the primary gold under seizure to Coimbatore for handing over the same to one N. Govindaraju, Proprietor, Alankar Jewellery at Coimbatore. It is in these circumstances, after further investigations, proceedings were instituted against the appellant resulting in the present impugned order, now appealed against.
3. Shri Suganchand Jain, the learned Counsel for the appellant submitted that the primary gold pieces were seized on 20-2-1983 and a show cause notice under the Act was sent only on 9-8-1983 and was served on the appellant on 24-10-1983, well after the expiry of six months from the date of seizure. It was, therefore, contended that as the show cause notice was not given within the stipulated period of six months from the date of seizure, as envisaged by proviso (ii) to Section 79 of the Act, the appellant would Be entitled to the return of the primary gold pieces. The learned Counsel further submitted that the gold pieces have been confiscated under the impugned order on the basis that the purity was of 24 ct. and a finding with reference to purity is purely rested on the opinion of the certified goldsmith. It was urged that a certified goldsmith is not competent to express a precise opinion with reference to the purity of the gold and when 13 pieces of primary gold have been seized from the appellant, it cannot by any stretch of imagination be contended that all the pieces of gold would be of same purity. In developing this line of argument the learned Counsel urged that in the interests of justice, the primary gold pieces must be subjected to test by the Mint authorities by proper assaying to ascertain the purity. It was further urged that the inculpatory statement recorded from the appellant on 20-2-1983 was neither voluntary nor true and would not merit acceptance as it was retracted when the appellant gave a reply to the show cause notice on 1-1-1985. The learned Counsel also submitted that the gold pieces had been bequeathed to the appellant’s children under a will by the appellant’s late father-in-law and as such the children of the appellant: being legatee would be entitled to the gold pieces under the said will, and the gold pieces would not be liable for confiscation in terms of proviso (ii) to Section 71(1) of the Act. Finally, the learned Counsel fervently pleaded that the Tribunal, being the highest appellate authority on questions of fact, in the interests of justice, the primary gold pieces may be directed to be sent for assaying by the Mint authorities to ascertain the purity at the cost of the appellant.
4. Heard Shri K.M. Vadivelu, the learned Departmental Representative. The learned DR urged that the appellant admittedly not being a licensed dealer or a certified goldsmith cannot under law possess primary gold and such possession is per se an offence under Section 8(1) of the Act entailing confiscation. The learned DR placed reliance on the statement of the appellant dated 20-2-1983 and pleaded for rejecting the. plea of the appellant that the gold was bequeathed to his children under a Will by his late Father-in-law since such a claim saw the light of the day for the first time very belatedly at a time when a reply to the show cause notice was given, well nigh after about two years.
5. We have carefully considered the submissions of the parties before us. The fact that on 20-2-1983 the primary gold, pieces in question and referred to supra were recovered from the possession of the appellant does not admit of any controversy and is indeed admitted. The plea of the learned Counsel that the inculpatory statement recorded from the appellant by the authorities immediately on seizure of the gold pieces is neither voluntary nor true, is not acceptable in the facts and circumstances of this case. As rightly contended by the learned DR, there was no immediate retraction of the statement and for the first time, as fairly admitted by the learned Counsel for the appellant, a retraction and claim of the gold pieces under the Will saw the light of the day after a lapse of about two years at the time when the appellant choose to give a reply to the show cause notice. We would like to note that there is no explanation at all on the part of the appellant as to why he did not come forward with a retraction or his claim, under the alleged Will earlier at any point of time, even though gold pieces of very substantial value were seized by the authorities. The plea of the learned Counsel that the opinion of the certified goldsmith that the gold pieces were of 24 carat purity cannot be accepted is not tenable in law. A certified goldsmith is a competent person to express an opinion with reference to the purity of the gold and in the instant case, the appellant admittedly did not even choose to challenge the opinion of the goldsmith with reference to the purity and has admitted or acquisced in such opinion as it were, hence he cannot now, for the first time urge the plea that the purity is not 24 carat. It would be relevant to note in this connection that even in the reply to the SCN, the appellant never challenged the purity of the gold in question. The plea of the learned Counsel that the show cause notice was not given within a period of six months from the date of seizure and therefore, the impugned order of confiscation, would stand vitiated is not legally tenable. Assuming arguer do that the Court cause notice was given by the authorities” after the expiry of six months from the date of seizure, even then that would not in any way, vitiate the power of adjudication and consequential order of confiscation and imposition of penalty. We would like to note in this context that the SCN was issued by the authorities on 12-8-1983 within a period of six months from the date of seizure which was on 20-2-1983. However, even assuming that it was after six months from the date of issue of show cause notice from the date of seizure, that would not invalidate a valid order of confiscation in adjudication proceedings. This question is no longer res integra and is covered by the authoritative pronouncements of the Supreme Court in the case of Assistant Collector of Customs v. Charan Dass Malhotra reported in AIR 1972 SC (698), A similar view has also been taken by the Division Bench of the Madrag High Court in the case of Collector of Customs and Central Excise, Hyderabad v. Amruthalakshmi and Ors. reported in AIR 1975 (Madras) (p. 43). The ratio decidendi of the ruling of the Supreme Court and that of the Division Bench of the Madras High Court in those cases is that even if a show cause notice is not issued within the statutory period of six months as envisaged by Section 110(2) of the Customs Act, 1962, that would not take away the power of Department to proceed with confiscation and penalty proceedings under Section 124 of the Customs Act, 1962. It was held that the aforesaid two sections under the Customs Act are independent and while Section 110 of the Customs Act is restricted to seizure and detention of the goods for. purposes specified, it has nothing to do with the powers conferred on the authority under Section 124 of the Customs Act, 1962. We would like to note in this context that the provisions of Section 110 of the Customs Act, 1962 is in pari materia with Section 79 of the Gold (Control) Act, 1968 and we also bear in mind that both the legislations are the species of the same genre. At this distance of time, we are not inclined to accept the plea of the learned Counsel for sending the gold pieces for purposes of analysis by the Mint authorities for ascertaining the purity, particularly, in the context of an admitted situation where the appellant did not at any point of time till now questioned the correctness of the purity as ascertained by a certified goldsmith prior to adjudication. If really, the appellant had come upon that gold pieces under a Will executed by his late Father-in-law, it passes our comprehension as to why he should have given a different version, namely, that he was a carrier of the same at the instance of one Madanlal of Amritsar to one Govindaraju of Alankar Jewellers at Coimbatore. We find from the records that both Madanlal of Amritsar as well as Govindaraju, the intended consignee at Coimbatore, have completely, not only disowned the gold but also any connection with the appellant. In such circumstances, we are not inclined to attach any importance to the theory of Will propounded by the appellant very late in the day and therefore, rejecting that plea of the appellant, we hold that the gold in question was sought to be transported by the appellant in contravention of law, presumably for purpose of sale. Since the purity of gold have been found to be of 24 carat and since the same was not challenged or assailed by the appellant at any time earlier, we have no other alternative but to uphold the order of confiscation of the same under the impugned order. In this view of the matter, we confirm the impugned order with reference to absolute confiscation of the primary gold pieces. So far as penalty is concerned, in the circumstances of this case, we reduce it from Rs. 40,000/- to Rs. 20,000/- (Rupees twenty thousand only). Except for the above modification, the appeal is otherwise rejected.