ORDER
D.C. Mandal, Member (T)
1. In these Reference Applications, the applicants have prayed that following two questions may be referred to the Hon’ble High Court under Section 82-B(1) of the Gold (Control) Act, 1968 :-
(i) Section 79 of the Gold (Control) Act, 1968 provides for giving a notice to the owner of the gold or other person concerned, before ordering confiscation of the gold. It is to be decided whether a claimant of gold or his successors should be treated as the owner of gold or they are covered under the term “the other person concerned”.
(ii) Whether successors can be debarred from inheriting the property of their father simply because the liability of Section -8(1) of Gold (Control) Act, 1968 attached to their father cannot be transferred to them.”
2. When these applications came for hearing before us, Shri Suresh Chand Agnihotri appeared on his own behalf and on behalf of his brother Shri Mahesh Chand Agnihotri. He submitted a letter of authority from Shri Mahesh Chand Agnihotri to represent his case. Shri Suresh Chand Agnihotri submitted written arguments and said that he did not want to argue orally, nor any counsel would be engaged for arguments in these two Reference Applications. He prayed that the Reference Applications might be decided on the basis of the written brief submitted at the time of personal hearing.
3. Smt. Nisha Chaturvedi, learned S.D.R. appearing for the Respondent-Collector, stated that she did not want to address any argument.
4. We have considered the records of the case including Reference Applications and the written brief submitted by the applicants.
5. The facts of the case were explained in Paragraph-2 of this Tribunal’s order dated 4-2-1987. In this case, the gold was seized from the business premises of Shri Vijay Kumar and show cause notice was issued to him. Applicants herein claimed before the Adjudicating authority that seized gold belongs to their father Shri Ram Jiwan Agnihotri and they were claiming return of the gold as legal heirs of their father. Adjudicating authority did not accept the claim of the applicants that Shri Ram Jiwan Agnihotri (deceased) was the owner of the seized gold. He ‘did not, therefore, issue show cause notice to the applicants herein but he granted them personal hearing before confiscating the gold under Section 71 of the Gold (Control) Act, 1968 for contravention of Section 8(1) of the Act. No penalty was imposed on Shri Vijay Kumar giving him benefit of doubt. On appeal, Collector of Customs (Appeals), New Delhi, modified the order of the Additional Collector of Central Excise, Kanpur, to the extent that redemption fine of Rs. 16,0007- was imposed in lieu of absolute confiscation, and Collector allowed the applicants to redeem the confiscated gold on payment of redemption fine. Appeal filed by the Revenue against the said order of Collector of Customs (Appeals), New Delhi, was decided by this Tribunal in the impugned orders No. A-67-68/87-NRB. After due consideration of the facts and circumstances of the case, evidence on record and arguments addressed by the learned Counsel for the appellants and the learned Departmental Representative, this Tribunal could not hold that the gold in question belonged to Shri Ram Jiwan Agnihotri and it held the view that ownership of the gold was not established.
6. In Paragraph 7 of the Order dated 4-2-1987 this Tribunal observed that show cause notice was to be issued to the owner of the goods after the. adjudicating officer was satisfied that the seized goods belong to a person other than the one from whom the goods were seized. In the present, case, show cause notice was issued to Shri Vijay Kumar as he was presumed to be the owner of the gold under Section 99 of the Gold (Control) Act. Although S/Shri Suresh Chand Agnihotri and Mahesh Chand Agnihotri claimed the gold, Show Cause Notice was not issued to them because the adjudicating officer was not satisfied about their ownership. They were, however, heard before the gold was confiscated. Tribunal, in the circumstances, observed that there was no force in the contention of the learned Counsel for the appellants that confiscation was illegal. In paragraph 9 of the impugned order, this Tribunal also observed that “Under Section 73 of the Gold (Control) Act, the adjudicating officer may give the owner of the confiscated gold an option to pay fine in lieu of confiscation. Thus, redemption fine can be imposed if the ownership of the gold is established. In the present case ownership is not established. As a result, Collector (Appeals)’s order to release the seized gold on payment of fine is contrary to the provision of Section 73 of the Act. As the impugned order is not according to the provision of law, it has to be set aside and the order of the Additional Collector restored. We order accordingly. Consequently, the appeal filed by the Collector of Central Excise is allowed and the appeal and cross objection filed by S/Shri Suresh Chand Agnihotri and Mahesh Chand Agnihotri are dismissed.”
7. As would be seen from the facts stated in the impugned order dated 4-2-1987 and from the above, the applicants herein were neither owner of the gold nor “other person concerned”. According to the view of this Tribunal, late Shri Ram Jiwan Agnihotri was not the owner of the seized gold. There is no question of inheriting the property by the applicants herein. In the circumstances, two questions raised by the applicants do not arise out of Order No. A/67/-68/87-NRB dated 4-2-1987 passed by this Tribunal. In the circumstances, prayer of the applicants to refer these two questions to the Hon’ble High Court under Section 82-B(1) of the Gold (Control) Act, 1968 cannot be accepted. In the result, the Reference Applications-are dismissed.