{"id":211704,"date":"1989-03-09T00:00:00","date_gmt":"1989-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-n-rajan-vs-collector-of-c-ex-on-9-march-1989"},"modified":"2015-09-03T00:45:13","modified_gmt":"2015-09-02T19:15:13","slug":"p-n-rajan-vs-collector-of-c-ex-on-9-march-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-n-rajan-vs-collector-of-c-ex-on-9-march-1989","title":{"rendered":"P.N. Rajan vs Collector Of C. Ex. on 9 March, 1989"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Tamil Nadu<\/div>\n
P.N. Rajan vs Collector Of C. Ex. on 9 March, 1989<\/div>\n
Equivalent citations: 1989 (25) ECR 408 Tri Chennai, 1989 (43) ELT 657 Tri Chennai<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
S. Kalyanam, Member (J)<\/p>\n
1. G\/Ref\/COD\/225\/88\/MAS. – For the reasons stated in the condonation petition and having regard to the fact that the Reference Application initially was filed within the stipulated time and only for technical reasons a separate Reference Application had also to be filed by Shri Rajan, the delay is condone.\n<\/p>\n
G\/Ref\/Misc\/226\/88\/MAS & G\/Ref\/Stay\/360\/88\/MAS. – The prayer in the Miscellaneous application G\/Ref\/Misc\/226\/88 and also in G\/Ref\/Stay\/360\/88 is for stay of the operation of the impugned order of the Tribunal pending disposal of the Reference Applications.\n<\/p>\n
2. Since we propose to dispose of the Reference Applications themselves today with the consent of the parties, these applications are dismissed.\n<\/p>\n
G\/Ref\/91\/88\/MAS & G\/Ref\/16\/88\/MAS. – The Reference Applications are directed against the order of the Tribunal dated 29-10-1987 in Order No. 767\/87. The applicants have set out the following questions as Questions of Law in the Reference Applications:\n<\/p>\n
I. Whether the Hon’ble Tribunal acted in accordance with law and within its jurisdiction in finding the Applicant guilty and punishing him on the ground that a concession was allegedly made by his Authorised Representative.\n<\/p>\n
II. Whether the Authorised Representative was competent under law and had necessary authority in law to make the concession as mentioned in the appellate order of this Hon’ble Tribunal.\n<\/p>\n
III. Whether the concession made in the above regard by the Authorised Representative of the applicant is binding on the applicant.\n<\/p>\n
IV. Whether the Hon’ble Tribunal acted rightly and legally, in not independently considering the facts and circumstances of the case, concerning the alleged recovery of gold biscuits and primary gold and thus entering a finding of “guilty” against the applicant.\n<\/p>\n
V. Whether this Hon’ble Tribunal acted rightly and legally in not setting aside the order-in-original passed by the Collector of Central Excise.\n<\/p>\n
VI. Whether there was material before the Tribunal to enter a finding of violation of the provisions of the Customs Act and the Gold (Control) Act by the applicant.\n<\/p>\n
VII. Whether, after having found that the applicant was a poor man and had committed only a technical offence, the Tribunal acted rightly in imposing penalty on the applicant.\n<\/p>\n
VIII. Whether in proceedings like the present one, which are quasi-criminal proceedings, a confession like the one in question, which is of an inculpatory nature, could be made use of by the Authorised Representative, and whether such concession could be treated as confessional of guilt by the Appellate Tribunal.\n<\/p>\n
2. Shri Parameswaran, the learned Counsel for the applicants, made general submissions on the Questions set out in the Reference Applications and mainly contended that the admission made by the learned Consultant at the time when the appeals were argued before the Tribunal are not legally correct and proper and a Consultant under the Tribunal’s Rules by filing a Letter of Authorisation cannot claim the right and privileges of an Advocate and, therefore, the plea of the learned Consultant in appeal that the applicants were pleading guilty in regard to possession of two bars of primary gold to the charges levelled under the provisions of the Gold (Control) Act, 1968 is against law and the Tribunal also should not have recorded the pleading of guilt made on behalf of the applicants by a Consultant and acted on the same. The learned Counsel submitted that a question of law would arise in this regard meriting reference. The learned Councel also placed reliance on the Full Bench ruling of the Kerala High Court in the case of Sown Nayakam v. A.N. Menon, 1968 E.L.T. page 1 (F.B.).\n<\/p>\n
3. Heard Shri K.M. Vadivelu, the learned D.R.\n<\/p>\n
4. We have carefully considered the submissions made before us. In the instant case in para 4 of the impugned order of the Tribunal the pleas urged on behalf of the appellants before the Tribunal are recorded. The learned Consultant, who appeared for the appellants at the time of hearing of the appeals, admitted the contravention of the applicants under the provisions of the Gold (Control) Act, 1968 in relation to seizure of 2 bars of primary gold and only contended that “there is no evidence to prove that they are of foreign origin and, therefore, the penalty under the Customs Act, 1962 is not legally sustainable.” The Tribunal has considered the admission made in the open court by the learned Consultant and recorded its finding besides other questions in para 8 of the impugned order. The relevant portion of the order of the Tribunal in this regard is as under :-\n<\/p>\n
 “So far as the 2 gold bars are concerned, we are not inclined to accept the plea of the learned Consultant that they are not proved to be of foreign gold. We have already given reasons for accepting the inculpatory statements of the appellants, which would clearly establish that the gold bars were of foreign origin. Apart from it we also find that V.K. Raghavan has given a statement on 23-2-1984 admitting the fact that the gold bars were smuggled by him into the country from Dubai and sold to appellant Damodaran Nair. The fact remains that Raghavan did not retract the statement till 20-1-1985. Apart from it the inculpatory statement of the appellants in this regard corroborated by the statement of Raghavan has further been corroborated by the statements of Murleedharan, son of appellant Damodaran Nair, and his employee C.V. Mani both of whom admittedly did not retract their statements at all. In this context we would like to refer to the ruling of the Supreme Court in the case of State of Gujarat v. Shri Mohanlal Jitamalji Porwal and Anr.,<\/a> reported in 1987 (29) E.L.T. 483 (Supreme Court), wherein Their Lordships have even with reference to the gold of a purity of 99.60 observed that gold of such purity is manufactured only in foreign countries which have sophisticated equipment. It would, therefore, follow that gold of 24 ct. purity is not capable of manufacture in India and, therefore, the conclusion irresistable that they should have been smuggled into the country. We may state at this stage that the learned Consultant did not question or challenge that the gold bars were of 24 ct. purity nor advance any arguments in regard to the same before us. We, therefore, hold that the offence under the Customs Act, 1962 as found under the impugned order by the adjudicating authority is clearly made out. In regard to the charge of contravention under the Gold (Control) Act in respect of the said 2 gold bars the appellants pleaded guilty before us. Therefore, we hold that the 2 gold bars of 24 ct. purity are liable for absolute confiscation and in this view of the matter we uphold the impugned order of absolute confiscation in regard to the same.”\n<\/p>\n
5. The above order was dictated in the open court in the presence of the learned Consultant for the applicants. The plea of the learned Counsel now before us that a Consultant would stand at a different footing in the matter of making submissions before a court or quasi-judicial Tribunal from that of an Advocate and an Advocate would have the privilege to plead guilty on behalf of his\/her client, which privilege a Consultant under the Rules of the Tribunal would not have in the absence of specific orders cannot be countenanced. Notwithstanding the difference in general between an Advocate and a Consultant so far as a quasi-judicial Tribunal is concerned if a Consultant is authorised to appear on behalf of a client he is entitled to put forth a plea much the same way as an Advocate would be entitled to urge and plead on behalf of his client. The ruling relied upon by the learned Counsel, in our view would appear to be more against the applicants rather than in their favour, because it is clearly stated therein that an Advocate would be entitled to enter into a compromise on behalf of his client and also withdraw his pleading by the authority given to him under the vakalatnama. In the Tribunal also in the letter of authorisation similar powers are given to the Consultant holding a brief for a party and, therefore, if a Consultant has thought that pleading guilty to a charge under the provisions of the Gold (Control) Act, 1968 was in the best interests of his client and urged it before the Tribunal he could not be faulted on that ground and more so it cannot be urged that the Tribunal has no authority or jurisdiction to record such a plea and act on the same. If one were to hold a contrary view, it would only open the floodgates to litigants who might come up with allegations alleging that they did not give authorisations to plead one way or the other to the Consultants as the case might be. Apart from all other things, the scope of the Reference Application is only with reference to a question of law arising out of the impugned order of the Tribunal and in the present case when a person has pleaded guilty to the charge and the same has been recorded in the open court and order was passed, no question of law would arise particularly on the ground that the plea of guilty urged by the learned Consultant is not legally tenable and would give rise to a question of law. The learned Counsel submitted that it is open to an Advocate to put forth a plea of guilty and the same would be valid. We are not able to see how a Consultant could be differentiated from an Advocate more so when both are entitled to hold a brief and put forth pleas before a quasi-judicial statutory Tribunal. We, therefore, do not find any question of law arising at all in the circumstances much less one out of the impugned order of the Tribunal and we, therefore, dismiss the Reference Applications.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Tamil Nadu P.N. Rajan vs Collector Of C. Ex. on 9 March, 1989 Equivalent citations: 1989 (25) ECR 408 Tri Chennai, 1989 (43) ELT 657 Tri Chennai ORDER S. Kalyanam, Member (J) 1. G\/Ref\/COD\/225\/88\/MAS. – For the reasons stated in the condonation petition and having regard to the fact […]<\/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":[1],"tags":[],"class_list":["post-211704","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nP.N. Rajan vs Collector Of C. 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