ORDER
S. Kalyanam, Member (J)
1.This appeal is directed against the order of the Collector of Central Excise (Appeals), Madras, dated 10-12-1986 confirming the order of the original authorities viz. the Deputy Collr. of Central Excise, Vishakhapatnam, dated 8/14-5-1986 (sic) absolutely confiscating primary gold totally weighing 227.800 gms. under Section 71(1) and imposing a penalty of Rs. 2,000 under Section 74 of the Gold (Control) Act, 1968, hereinafter referred to as the ‘Act’.
2. The appellant is a resident of Berhampur. The appellant’s brother, Satyanarayana Subudhi, is a certified goldsmith at Berhampur. The appellant was intercepted by the Police authorities at Palasa in Andhra Pradesh on 20-10-1982 and primary gold weighing 227.800 gms. in his possession was seized by the Police authorities on the ground that the gold was stolen property. Though initially a case was registered by the Police the proceedings were dropped. Subsequently the Police authorities made over the case to the Central Excise authorities on 2-8-1985 and the Central Excise authorities effected seizure of the same under the Act. The appellant also gave a statement before one Shri Konchada Bhaskar Rao Subudhi, who had on 10-12-1982 brought certain old gold ornaments to the appellant’s brother Konchada Satyanarayana Subudhi, a certified goldsmith, for re-making into new ornaments. The appellant further stated that his brother Satyanarayana melted the gold ornaments and sent the melted gold to another certified goldsmith at Palasa through the appellant, when the same was seized by the Police authorities as stated above. During the adjudication proceedings, though Show Cause Notice was issued to the owner of the gold, Bhaskar Rao Subudhi, who was said to be the owner as per the statement of the appellant and also to the appellant’s brother Satyanarayana Subudhi, the request for an adjournment by both of them was negatived by the adjudicating authority and the adjudication was proceeded with eventually culminating in the present impugned order now appealed against.
3. Shri Rao, the learned counsel for the appellant, submits that in terms of Section 37 read with Section 43 of the Act a certified goldsmith may in the course of manufacturing ornaments send to any other certified goldsmith for any special process necessary or ancillary to the manning, manufacturing, preparing, repairing an ornament and the ornaments in question was actually sent by the appellant’s brother, who is admittedly a certified goldsmith to another certified goldsmith for such purposes at Palasa through the appellant. It was, therefore, urged that the appellant cannot be said to have contravened any provisions of the Act. The learned counsel further urged that the fact of melting the ornaments belonging to Bhaskara Rao Subudhi is indicated in the G.S. 13 statutory register of the appellant’s brother, which was seized by the Central Excise authorities at Bhubaneswar. The learned counsel submitted that though repeated efforts were taken by the appellant to summon the G.S. 13 register, which is still in the custody and possession of Central Excise authorities at Bhubaneswar, the same was not made available during adjudication resulting in serious prejudice to the appellant in the conduct of his defence. The learned counsel further submitted that originally the hearing was posted on 21-3-1986 and after initial adjournment by the appellant the adjudication was adjourned to 18-4-1986 and on 18-4-1986 the adjudicating authority suo motu adjourned the enquiry to 5-5-1986. On 5-5-1986 an adjournment was sought for by the appellant’s brother on grounds of illness by production of a medical certificate and the owner Shri Bhaskar Rao also requested for an adjournment through his counsel and the adjournment was negatived. It was submitted that if the ornaments belonged to Bhaskar Rao, they would not be liable for confiscation in terms of the proviso to Section 71 of the Act. The learned counsel further submitted that if the G.S. 13 register, which was actually sent for by the adjudicating authority, had been made available during adjudication by the Central Excise authorities at Bhubaneswar, the appellant would have been enabled to put forth a plea to substantiate his contention that the ornaments belonged to Bhaskar Rao and the gold is a resultant of melting the same by the appellant’s brother, who is a certified goldsmith. The learned counsel, therefore, submitted that the impugned order is bad in law besides being violative of the principles of natural justice.
4. Heard Shri Krishnan, the learned D.R.
5. The fact submitted by the learned counsel for the appellant regarding the original hearing on 21-3-1986 and the subsequent adjournment is not disputed by the learned D.R. and is also borne out by the records. I find that when the case came up for hearing for the second time on 5-5-1986, an adjourn-. ment was sought for by one of the parties on grounds of personal illness by production of a medical certificate. This apart, I also find that the claimant Shri Bhaskar Rao also prayed for an adjournment through his counsel. In my opinion the adjudicating authority could have afforded them an opportunity by granting one more adjournment. Be that as it may, the appellant did put forth a plea that the ornaments in question had been duly accounted for in the statutory G.S. 13 register of the appellant’s brother, who is a certified goldsmith. It cannot be gainsaid that the G.S. 13 register and the relevant entry therein in relation to the gold in question would be a relevant piece of evidence, which would merit consideration particularly when the document is said to be in the custody of the Central Excise authorities at Bhubaneswar and was sought to be sent for by the appellant through the adjudicating authority. I have gone through the records and I find that by a communication in O.R. No. 3/85 dated 4-4-1986 from the office of the Deputy Collector of Central Excise, Vishakhapatnam, to the Superintendent of Central Excise, Berhampur, the G.S. 13 register of the appellant’s brother has been specifically sent for highlighting the urgency of the situation. I also find that on 24-4-1986 the Superintendent of Central Excise, Berhampur, referred to the above said communication of the adjudicating authority and has written as follows:-
“I am to inform you that G.S. 13 account of Shri K. Satyanarayana Subudhi for the period 18-10-1982 to 20-10-1982 has been seized by the Superintendent of Central Excise, Preventive, CP Unit, Bhubaneswar. He may be requested to send the above account to you. The address of whom is given below.”
I further find that an Express Telegram had been sent to the Superintendent of Central Excise, Preventive, Bhubaneswar seeking the production of the said G.S. 13 account book of the appellant’s brother, followed by a detailed post-copy dated 28-4-1986. In spite of the above communication from the adjudicating authority to a subordinate authority viz. the Superintendent of Central Excise for causing production of a relevant statutory register seized from the appellant’s brother the same was not made available and in such a situation, without drawing an adverse inference against the Department for non-production of a relevant document, the adjudicating authority has proceeded to adjudicate the issue and decided the case against the appellant and I need hardly add that such a course is not tenable in law. If the adjudicating authority on perusal of the G.S. 13 register feels persuaded to accept the same, then that would establish that the gold in question is the result of melting the ornaments of one Bhaskar Rao. I would like to observe in this context the fact that immediately on seizure by the Central Excise authorities of the primary gold the appellant came forward with a version attributing ownership to Bhaskar Rao and also the act of melting the ornaments resulting in the impugned gold under seizure to appellant’s brother, Satyanarayana, who is a certified goldsmith. On consideration of the entire materials before me I am inclined to think that interests of justice would require that the appellant and the alleged owner of the gold should be afforded an opportunity to substantiate their plea. The non-production of the G.S. 13 register by the Superintendent of Central Excise, Bhubaneswar, in spite of Express Telegram and communication by the adjudicating authority cannot be viewed lightly and the adjudicating authority should have taken a sterner view of the situation. As stated above, I am further inclined to hold that one more adjournment could have been granted to the claimant in the facts and circumstances of this case. Taking the above factors into consideration, without expressing any opinion on the merits of the issue, I set aside the impugned order appealed against and remit the matter to the Deputy Collr. of Central Excise, Vishakhapatnam, for re-consideration of the issue afresh on merits after affording the appellant an opportunity of being heard as per law. The learned D.R. with characteristic fairness submits that notwithstanding the fact that the owner of the ornaments Shri Bhaskar Rao has not preferred any appeal, he may also be given an opportunity in the peculiar facts and circumstances of the case. I entirely agree with the submission of the learned D.R. and direct that notice of hearing should also be sent to the claimant Shri Bhaskar Rao. At this stage the learned counsel for the appellant submits that the G.S. 13 register, which the adjudicating authority summoned from the Superintendent of Central Excise, Bhubaneswar, may be secured and made available during adjudication. The adjudicating authority is further directed to get the G.S. 13 register, which admittedly is in the custody of the Superintendent of Central Excise, Bhubaneswar, and make the same available in the interests of justice at the time of adjudication. Ordered accordingly.