{"id":131352,"date":"1986-02-28T00:00:00","date_gmt":"1986-02-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/madhusudan-malani-vs-collector-of-customs-on-28-february-1986"},"modified":"2017-03-10T04:37:43","modified_gmt":"2017-03-09T23:07:43","slug":"madhusudan-malani-vs-collector-of-customs-on-28-february-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/madhusudan-malani-vs-collector-of-customs-on-28-february-1986","title":{"rendered":"Madhusudan Malani vs Collector Of Customs on 28 February, 1986"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
Madhusudan Malani vs Collector Of Customs on 28 February, 1986<\/div>\n
Equivalent citations: 1986 (24) ELT 422 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 G.P. Agarwal, Member (J)<\/p>\n
1. Both the captioned appeals arise  out  of a   common  order-in-appeal No. 6, 7-RAJ\/Gold\/83 dated 30-11-1983, passed by the  Collector of Customs (Appeals), New Delhi,   confirming the order-in-original No. 10(Gold)\/80 dated  30-6-1980 passed by the  Deputy Collector  Jaipur     Since both the captioned   anneals arise   out of the  Common order-in-appeal and issues involved in both the appeals are the same, they were heard together and are, hereby, disposed of by this common order.\n<\/p>\n
2.    Brief facts of the case, so far as relevant for the purpose of these appeals, are (hat on 24-9-1979.  officers of the Narcotics Department, during the course  of their routine ‘Nakabandi at Chag Gate, Beawar, searched   the appellant   Shri Madhdsudan,  who had  alighted from   a bus coming from Bhilwara, and detected five bangles of gold duly wrapped in silken printed piece of cloth and concealed  below the Pant under belt.   Besides, a piece of paper with address of Shri Ramji Dass Modi and three bus-tickets, bearing different numbers, were also recovered from the appellant Madhusudan.   The recovered bangles, on examination by the expert on the spot, were found of 23 carats to 23.75 carats purity and weighed 207.800 gms., valuing at Rs. 23,800\/-.    As such, they were seized on the reasonable plea that the same were liable to confiscation under Section 71 of the Gold Control Act, 19.68.   A Statement of appellant Shri Bankat Lal Malani, who is no other than the father of the appellant Madhusudan, was also   recorded, in which he   stated that he deals in silver ornaments and has no licence for dealing in gold.   He further stated that he had given the said 5 bangles to his son  Madhusudan appellant for remaking  of ornaments of new fashion.   On these facts, a   show-cause notice was issued to the appellants calling upon them to show cause as to why the said sold, in the form of crude bangles. should not be confiscated under Section 71 of the Gold  Control Act,  1968,  and  also to show cause why penal action should not be taken against them under Section 74. ibid.    In reply to the show-cause notice, both the appellants abjured their guilt.   After the usual enquiry, the   adjudicating authority found that the   charge of violation of Section 8(1)  of Gold  Control   Act  stands  established  against   both the  appellants. Accordingly, the adjudicating authority ordered for the confiscation of the  said, five bangles under Section 71 of the Gold  Control  Act. and further, imposed a personal penalty of Rs. 2,000\/- each on both the appellants under Section 74 of the Gold Control  Act.   Both the appellants   chased the  matter in  appeal but without any success.\n<\/p>\n
3.    Shri G.K. Rana, Advocate, who appeared on behalf of both the appellants, contended that the seized five bangles were ornaments within the definition of Section 2(p) of the Gold  Control Act and not primary gold as defined in Section 2(r) of the Gold Control Act. In support of his contention, he relied upon the judgment, rendered in the case of Sumanlal Parekh and Ors. v. Collector of Central Excise and Customs, West Bengal and Ors.-A.I.R. 1974 (Cal.) 158 and   Shri Nimai Charan Das v. Deputy \\Collector of Central Excise and Customs-1986 (23) E.L.T. 38 (Ori.).\n<\/p>\n
4.    In order to  appreciate the controversy in hand, it would be useful at the out set to refer to some of the relevant provisions of the Act. Section 8(1) of the Act provides as follows :\n<\/p>\n
“(i) Save as otherwise provided in this Act, no person shall- (i) Own or have in his possession, custody or control, or<\/p>\n
(ii) acquire or agree to acquire the ownership, possession, custody or control of, or<\/p>\n
(iii) buy, accept or otherwise receive or agree to buy, accept or otherwise receive any primary gold.”\n<\/p>\n
The expression ‘Primary gold’ has been defined in Section 2(r) of the Act as follows;\n<\/p>\n
 ” ‘Primary gold’ means gold in any unfinished or semi-finished form and includes ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires.”\n<\/p>\n
The expression ‘Ornaments’ has been defined in Section 2(p) of the Act as follows:\n<\/p>\n
” ‘Ornaments’ means a thing, in a finished form, meant for personal adornment or for the adornment of any idol, deity or any other object of religious worship, made of. or manufactured from gold, whether or not set with stones or gems (real or artificial), or with pearls (real, cultured or imitation or with all or any of them, and includes parts, pendants or broken pieces of ornaments.\n<\/p>\n
Explanation.-For the purposes of this Act, nothing made of gold, which resembles an ornament, shall be deemed to be an ornament unless the thing (having regard to its purity, size, weight, description or workmanship) is such as is commonly used as ornament in any State or Union Territory.\n<\/p>\n
Reference may next be made to a decision reported in A.I.R. 1974 Cal. 158 : Sumanlal Parekh and Ors. v. Collector of Central Excise and Customs, W. Bengal and Ors. wherein it was held :\n<\/p>\n
“On a construction of the scheme of the Act and having particular reference to the definition of ‘primary gold’ and ‘ornament’ which I have set out above, it seems to be that an essential pre-condition for assumption of jurisdiction under Section 8(1) of the Act is that the article in question must be primary gold. It is undoubtedly for the Gold Control Authorities to decide that collateral question of fact, namely, whether the article in respect of which the proceedings are sought to be initiated is ‘primary gold’ or not within the meaning of the Act. It is only upon a correct finding of that collateral fact that the authorities can assume jurisdiction to invoke the provisions of Section 8(1) of the Act for the purpose of initiation of proceeding thereunder. This fact as to whether the article in question is ‘primary gold’ or not is in my view clearly a jurisdictional fact, that is to say, a collateral fact upon a correct finding of which the assumption of jurisdiction by the authorities under Section 8(1) of the Act, will depend. It is well settled that if the authorities assume jurisdiction on the wrong finding of the collateral fact, the court in exercise of its high prerogative jurisdiction can correct that error. In other words, in examining the correctness of the finding of a jurisdictional fact the court issuing a writ of certiorari really acts as a court of appeal”.\n<\/p>\n
5.    Reference may now be made to the other case of Shri Nimai Charan Das v.  Deputy Collector of Central Excise and Customs (supra), which was relied upon by the learned Counsel for the appellants.   In that case, after referring the said decision of Sumanlal Parekh v. Deputy Collector of Central Excise and Customs, their Lordships of the Orissa High Court remitted the case for re-adjudication because some infirmities and defects were noticed  at the time of hearing in the impugned orders passed by the respondents of that case.\n<\/p>\n
6.    Keeping in view the statutory provisions and the principles enunciated in the decisions noted above, the facts of the case may now be examined.\n<\/p>\n
7.    There is no dispute that five bangles of gold were recovered from the appellant Madhusudan.   There is also no dispute between the parties regarding the purity of the bangles  seized, that is to say, purity of 23 to 23.75 carats. However, the appellants laid expert’s opinion before the adjudicating authority to show that  seized bangles were  ornaments  and not primary gold.  In other words, the experts opined that they were gold ornaments and not primary gold. However, the adjudicating authority did not agree with their opinion. He himself inspected the seized bangles of gold personally and observed as follows :-\n<\/p>\n
 “These are of unusual size and dimension. Although an attempt appears to have been made to give a certain amount of finishing to these bangles, yet the size, shape and crudeness at the joints apparently indicate that these are not in finished form. The largeness of size of the bangles also shows that these types of bangles are not generally worn by the ladies of the region… I am convinced on the…examination of bangles which are of large  and unusual size, unfinished that these have been given the present shape in order to consume the gold unauthorisedly acquired. The so-called bangles are of 23-23.75 carat purity and can be pressed easily with a little amount of pressure. It is also indicative that these are not in the form of ornaments, but gold obtained unauthorisedly was actually given the present shape to show its consumption.”\n<\/p>\n
While arriving at the said conclusion, he also took into consideration the different versions  given by the father and the son, that is to say, both the appellants.    The Collector of Customs (Appeals),  while agreeing with the reasoning and findings of the adjudicating authority, upheld the order of the adjudicating authority.   I see no reason to differ from the conclusion arrived at by the authorities below, and would also like to add that the Explanation appended to Section 8(1) of the Gold Control Act, as reproduced above, would indicate that nothing made of gold,  which resembles an ornament, shall be deemed to  be  an  ornament unless the thing (having regard to its purity, size, weight, description or workmanship) is such as is commonly used as ornament in any  State or Union Territory.   The adjudicating authority, after considering all the ingredients, that is to say, purity,  size, weight,  description, workmanship  and  use, has rightly concluded that the seized bangles of gold were not ornaments.   In this connection, it would be pertinent to make a reference to the case  of Mohanlal and Shavarlal Jain v. Government of India and Ors., decided by the Hon’ble High Court of Andhra Pradesh, reported in ‘1986 (23) E.L.T.  116 (A.P.)’.   In that case also, the adjudicating authority, after discarding the Trade Panel opinion that the seized gold rods and semi-finished articles were gold-ornaments and not primary gold, came to the conclusion, on personal inspection, that they were given the semblance of ornaments  to   bypass   the Gold Control  Order.   In that  situation, it was argued that the conclusion so arrived by the adjudicating authority was illegal.   It was vehemently argued in that case that in the face of the opinion of the experts that the seized goldrods were ornaments and not primary gold, the adjudicating authority was not right in holding that the same were not gold-ornaments merely on the basis of his personal inspection. While repelling the said contention, Their Lordships observed as under :-\n<\/p>\n
 “…We find from a perusal of the order of the Collector of Excise that he has not passed the order on the basis of the alleged confession. Having observed that he did not agree with the opinion of the Trade Panel, the Collector stated that he had personally seen the gold and had come to the conclusion that it was ‘primary gold’ and was not ‘ornaments’ as contended by the appellants. He gave several reasons for coming to that conclusion and we see no reason to differ from the conclusion arrived at by the Collector.”\n<\/p>\n
8.   Lastly, it was contended that the adjudicating authority erred in absolutely confiscating the seized 5 bangles of gold and has wrongly denied the benefit of redemption to the appellants in lieu of confiscation. I observe from the experts’ opinion on record that they valued the price of the gold bangles at Rs. 23.800\/- approximately. In view of the facts and circumstances of the instant case, I am of the view that the benefit of redemption in lieu of confiscation should not be snatched away from Madhusudan appellant. As such, in the interests of justice, it would be proper to give an option to Madhusudan appellant to redeem the same on payment of redemption fine of Rs. 20,000\/- in lieu of the confiscation within a period of six months from the date of receipt of this order.\n<\/p>\n
9. In view of the foregoing discussions, the appeal fails but the appellant Madhusudan is given an option to redeem the seized 5 bangles of gold, as stated above.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi Madhusudan Malani vs Collector Of Customs on 28 February, 1986 Equivalent citations: 1986 (24) ELT 422 Tri Del ORDER G.P. Agarwal, Member (J) 1. Both the captioned appeals arise out of a common order-in-appeal No. 6, 7-RAJ\/Gold\/83 dated 30-11-1983, passed by the Collector of Customs (Appeals), New Delhi, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-131352","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nMadhusudan Malani vs Collector Of Customs on 28 February, 1986 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/madhusudan-malani-vs-collector-of-customs-on-28-february-1986\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Madhusudan Malani vs Collector Of Customs on 28 February, 1986 - 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