ORDER
1. Consequent to the directions contained in C.R.P. No. 3/85 dated 16.9.1985 of the High Court of Judicature at Madras, on a petition filed by the applicant under Section 82(B)(3) of the Gold (Control) Act, 1968, we hereby state the case and refer the questions of law as contained in the above direction :
2. The facts of the case found by the Tribunal in paragraph 4 of the order are :-
This is one of the four cases of seizure of what was determined as primary gold by the Collector of Central Excise, Guntur from the appellant, at about 10.00 P.M. on 29.8.1980 near the Godavary Railway Station at Rajahmundry. The quantity of gold seized was 509 gms; it was determined to be of 23 ct. purity valued at Rs. 73,815/-. The appellant claimed that the seized items were finished, old ornaments which were in use by the members of his family for a long time. The Collector examined the seized items and found as follows :
“(i) the seized items, 26 in no. stated to be bangles of 23 ct. purity were found to be unusually malleable. It was found that the items were not in a fit condition for being used as bangles inasmuch as they would lose shape with a slight application of pressure without which no bangle can be worn into hands.
(ii) the items were not found to be in the finished form. The design on the bangles had no pronounced shape. Further these items did not appear to have been polished.”
He also noted that it was quite unusual for a person stated to be normally residing at Rajasthan to bring gold pieces in unfinished form for being sold at Rajahmundry and utilise the sale proceeds there from for starting a business at that distant place. He found that the goods constituted primary gold and ordered their confiscation under Section 71(1) of the Act for violation of Section 8(1)(i) thereof. He also imposed a penalty of Rs. 5,000/- on Jayanthilal.
3. The applicant’s appeal under Section 80 to the Gold Control Administrator against the above order has been transferred to this Tribunal under Section 82K of the Act.
4. After hearing both sides, the Tribunal dismissed the appeal for reasons recorded in paragraph 5 of its order, reproduced below :-
As the principal point for determination is whether the goods seized are ornaments in the form of bangles or unfinished material -which constitutes primary gold in terms of Section 2(r) of the Act, -we had examined the goods under confiscation. The pieces are in the form of circlets in three sizes with approximate diameters of 2.2″ (10 Nos.), 1.9″ (8 Nos.) and 1.5″ (8 Nos.). The weight of a pair of each category was found to be 44.2 gms., 38.4 gms. and 31.9 gms. respectively. The circlets have been joined together with the welded joint being still large and visible and not well-aligned. There is a marked indentation at the joint. The circular edges of the circlet are rough and not smoothened as in a bangle for wear. There is some sort of design which does not stand out. The circlets are soft in the sense that they do not retain their shape on moderate pressure. Considering the individual weight of the circlets, the manner of manufacture, their softness and the circumstances of seizure, we are satisfied that the goods do not constitute bangles or finished ornaments as defined in Section 2(p) of the Act. They are indeed primary gold referable to Section 2(r) ibid. The certificate of the three jewellers of Rajahmundry and the joint report of the shariff and another of Andhra Bank, talks about such goods being worn in the region around Rajahmundry. The appellant claims to have brought these items all the way from Rajasthan for the purpose of sale. The certificates are thus not indicative of the customs in and around Rajasthan and do not help the appellant.
5. The application for reference filed by the applicants under Section 82B was not referred by the Tribunal initially. Since the applicants have now obtained directions from the High Court to refer the following questions, these are now referred to the Honourable High Court of Judicature at Madras under Section 82(b) of the Act.
1. Whether the Appellate Tribunal is justified in not accepting the expert opinion taken by the Department ?
2. Whether, on the facts and in the circumstances of the case, the finding of the Appellate Tribunal that the goods (gold ornaments) are primary gold and not ornaments is correct in law ?
3. Whether the Appellate Tribunal is justified in absolutely confiscating the gold without giving option ‘to redeem when the statute provide for redemption ?
4. Whether the Appellate Tribunal is justified in sustaining the personal penalty levied by the adjudicating authority ?