ORDER
S. Kalyanam, Member (J)
1. C./ROA/203/86. – This is an application seeking restoration of the appeal dismissed for default by the Tribunal by order dated 20-6-1986. Shri Menon, the learned consultant submits that on the day when the hearing was posted, the consultant was out of Madras and due to sheer inadvertence, steps were not taken by the consultant’s office to make any representation ^seeking adjournment. In the circumstances the order of the Tribunal dated 20-6-1986 is set aside and the appeal is restored to file for disposal on merits according to law.
2. C/170 of 1986. – This appeal is directed against the order of the Collector of Customs (Appeals), Madras dated 31-1-1986 confirming the order of the Assistant Collector of Central Excise, Kottayam Division dated 1-1-1985 and absolutely confiscating six gold coins with foreign marking totally weighing 25.100 gms. under Section 111(d) of the Customs Act, 1962 (hereinafter referred to as the ‘Act’) read with Section 13(1) of the Foreign Exchange Regulations Act, 1973 besides a penalty of Rs. 500/- under Section 112 of the Act.
3. The Assistant Collector of Central Excise, Kottayam made a surprise visit to the jewellery mart (Fashion Jewellery) of the appellant who is a licensed gold dealer at Chengannur, on 6-11-1982. The result of the search revealed 559.300 gms. of gold ornaments and six gold coins with foreign marking weighing 25.100 gms. unaccounted, besides 300 U.S. dollars. The gold ornaments and coins and the currency were seized by the authorities under mahazar and the proceedings instituted against the appellant in respect of the seizure of. six gold coins with foreign marking weighing 25.100 gms. ultimately culminated in the present impugned order now appeled against.
4. Shri Menon, the learned consultant appearing for- the appellant submitted that in terms of Notification No. G.S.R. 76 issued under Section 13 of the Foreign Exchange Regulations Act, 1973 any foreign coin is permitted to be brought into India from any place outside India. It was urged that the authorities below have not considered the scope of the said notification in favour of the appellant and the impugned order -was, therefore, assailed as legally unsustainable. It was further urged that even assuming that the said notification does not apply, inasmuch as the presumption embedded in Section 123 of the Act has not been specifically set out in the show cause notice, much less adverted to in the Order-in-original of the adjudicating authority, the lower appellate authority is in error to have placed reliance thereon.
5. Shri Krishnan, the learned Departmental Representative urged that the notification under the Foreign Exchange Regulations Act, relied upon by the learned consultant for the first time before this Tribunal has no relevance to the coins under seizure since it deals with only coins capable of use as foreign exchange and as legal tender. Regarding the non-mention of Section 123 in the show cause notice ‘and in the order-in-original, the learned Departmental Representative submitted that seizure of foreign coins would ipso facto attract Section 123, and being a rule of evidence casting a onus on the appellant it need not be specifically mentioned or set out in the show cause notice.
6. I have considered the submissions of the parties herein. The facts that six gold coins weighing 25.100 gms. with foreign marking were seized from the possession of the appellant does not admit of any controversy and is indeed admitted. As rightly contended by the learned Departmental Representative the notification issued under the provisions of the Foreign Exchange Regulations Act in exercise of the powers conferred by Sub-section (1) of Section 13 referred to and relied upon by the learned consultant for the appellant will not apply to the seizure of gold coins with foreign marking concerned in this case. The Foreign Exchange Act is intended to consolidate and regulate transactions and effect foreign exchange for the conservation of foreign exchange and the notification is very clear that any foreign exchange other than foreign coins is not permitted to be brought into the country from outside. Therefore, it follows that foreign exchange in the form of foreign coins are permitted in terms of the notification. The word ‘foreign exchange’ has also been defined under the Foreign Exchange Regulations ‘Act, 1973 as, “… any drafts, traveller’s cheques, letters of credit and bills of exchange etc.” expressed in foreign currency. Therefore, it follows that gold coins with foreign marking which are not legal tender cannot come within the mischief and ambit of the notification referred to by the learned consultant. Apart from it, admittedly this particular notification was not relied upon, much less referred to by the appellant at any time and this is raised for the first time before the Tribunal. I, therefore, hold that the said notification has no application to the coins under seizure in the present case. Regarding non-mention of Section 123 in the show cause notice or in the order-in-original, no prejudice can be said to have resulted therefrom to the appellant at all. In the instant case seizure of gold coins with foreign marking from the appellant’s possession is admitted. Section 123 says that any goods to which the Section applies are seized in the reasonable belief they are smuggled goods from the possession of a person, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. The Section applies to gold and gold coins with foreign markings were admittedly seized from the possession of the appellant in the present case and therefore the onus of proving that the coins are not smuggled squarely lies on the appellant in terms of Section 123 of the Act. Section 123 being a statutory provision, the fact that it was not specifically set out in the show cause notice or in the order-in-original would not in any way invalidate the impugned order. 1, therefore, do not find any substance in this plea of the appellant as well. I, therefore, confirm the finding of the authorities below in respect of the confiscability of the gold coins with foreign marking under seizure. At this stage Shri Menon urged that the purity of the coins under seizure being of 22 carats the appellant may be given an option to redeem the same on payment of a fine. In respect of gold coins with foreign marking where the purity is less than 24 carats this Tribunal as a Bench in a number of gold control cases has taken the view that an option for redemption could be given depending on the facts and circumstances of the case. Recently a similar view was taken by the Bench in Appeals Nos. 34, 3.5 and 160 of 1984, dated 1-8-1986. Consistent with the ratio of the Bench ruling in similar cases, I modify the order of absolute confiscation of the six gold coins under seizure and permit the appellant to redeem the same on payment of a fine of Rs. 3,000/- (Rupees three thousand only). The option shall be exercised within a month from the receipt of this order and immediately on redemption, the appellant shall convert the same into ornaments through a licensed gold dealer or certified goldsmith and report compliance thereto to the Assistant Collector of Central Excise, Kottayam within two weeks thereafter, failing which the coins will be liable for absolute confiscation. Except for the above modification, the appeal is otherwise dismissed.