TMI Blog1987 (1) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... an Currency notes amounting to Rs. 85,000/- were recovered. Above these bundles of notes, there was a foam pillow of cream colour. In the said pillow, 2 big pieces of gold were found to be concealed. When the personal search of Amarjit Singh was effected, 8 pieces of gold concealed in the inner part of the waist belt of the pant which he was wearing were also recovered. Besides the said gold and currency notes, a railway ticket and 6 cheques amounting to Rs. 32,445/- were also found in the brief case. On weighment, gold pieces recovered from the pillow and the person of Amarjit Singh were found to be of 757.300 gms. Its purity was also got verified and found to be 99 touch. As Amarjit Singh could not give the satisfactory explanation regarding the acquisition of the gold and the Currency notes, the same were seized under the provisions of the Customs Act. In his statement Amarjit Singh, however, stated that his brother Nirmal Singh, who was in Howrah had given him the gold pieces, Currency notes and other articles found and it was at his behest that the brought them to Amritsar. Shri Nirmal Singh was also examined by the Customs authorities on 28-5-1980. He stated that Kartar Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kartar Singh, Kirpal Singh and Harbans Singh duly reflected in the statutory accounts of M/s. Jagir Singh Nirmal Singh is a hoax and I reject the same as untenable. After recording the said finding the Adjudicating Authority ordered for the absolute confiscation of the 10 pieces of primary gold weighing 757.300 gms. and also ordered for the absolute confiscation of the recovered Indian Currency of Rs. 85,000/- u/s 71 of the Gold (Control) Act, 1968, Besides, personal penalties were also imposed u/s 74 of the Gold (Control) Act on the said Amarjit Singh and Nirmal Singh vide Order-in-Original No. 10/Gold/1981 dated 7-7-1981. Against that, the appellant [Appeal No. GC/Del(T)/129/81-NRB] as well as Amarjit Singh [A.No. GC/ Del(T)/131/81-NRB] and the said Nirmal Singh (A.No. GC/Del(T)/130/81-NRB] filed their respective appeals before this Tribunal. Appeals of S/Shri Nirmal Singh and Amarjit Singh were disposed of by this Tribunal by a common order No. A-39-40/84-NRB dated 16-4-1984 in the following terms : - (i) The confiscation of the amount of Rs. 85,000/- was not justified and the order to that extent cannot be sustained (para 6). (ii) Nirmal Singh was the principal actor in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o say, S/Shri Nirmal singh, Amarjit Singh and the present appellant Jagir Singh having not been challenged, as admitted by Shri Beri, counsel for the appellant in any other legal proceedings. 5. As regards the Customs case, Show Cause Notices were issued to the said S/Shri Nirmal Singh and Amarjit Singh to show cause as to why the 10 pieces of primary gold weighing 757.300 gms. be not confiscated and why personal penalties be not imposed. In reply, they took the same stand which were taken in the gold case as stated above. The present appellant also claimed the ownership of the primary gold in question taking the same stand which was taken in the gold proceedings. After the adjudication proceedings the Adjudicating Authority vide his Order-in-Original No. 7/CUS/1981 dated 7-7-1981 ordered for the confiscation of the 10 pieces of primary gold in question absolutely u/s 111 of the Customs Act and also ordered for the confiscation of the pant, foam pillow, brief case etc. Personal penalties were also imposed on the said Nirmal Singh and Amarjit Singh. Being dis-satisfied, the appellant as well as the said Nirmal Singh and Amarjit Singh preferred their respective appeals to the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention at the outset that in the present appeal the appellant has stated against column No. 10 of the form of appeal providing for Reliefs claimed in appeal as under :- (i) The appellant Jagir Singh may be accepted as owner of gold weighing 757.300 gms. (ii) The gold ordered to be confiscated may be released to the appellant Jagir Singh. After stating as aforesaid the appellant has made the following prayer at the end of the appeal:- I again pray that gold may kindly be ordered to be delivered to me on payment of redemption fine of Rs. 40,000/- imposed under the order-in-appeal passed under Gold Control Act. 8. Shri C.L. Beri, learned counsel for the appellant vehemently contended that during the adjudicating proceedings the appellant made his claim regarding the ownership of the primary gold in question by way of representation to the Collector. But no show cause notice was ever issued to the appellant in terms of Section 124 of the Customs Act, 1962. We are afraid this contention has no force for the following reasons :- (i) The plea that no show cause notice was issued to the appellant cannot be raised at this stage in the appeal in hand for the reason that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nirmal Singh were considered to be the persons concerned in acquiring, possessing, keeping, carrying and dealing with the gold which they knew and had reason to believe were liable to confiscation and were also liable to penal action under Sections 111 and 112 of the Customs Act, 1962 respectively. As a follow-up action, show cause notices were issued to the said Amarjit Singh and Nirmal Singh calling upon them to show cause as to why the contraband primary gold etc. be not confiscated and penal action be not taken against them. It appears from the record and admitted to the appellant that the appellant made a representation regarding the claim of the ownership before the issuance of the show cause notice. Thus, it stands to reason that at the stage of taking a decision for the issuance of the show cause notice u/s 124 the Adjudicating Authority never treated the appellant as the owner of the contraband primary gold. But on the other hand treated the said Amarjit Singh and Nirmal Singh as the owner of the gold in question. Under these circumstances it was not obligatory on the Adjudication Authority to issue any show cause notice to the appellant. Further it is significant to note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority regarding the claim of ownership, he failed to point out any such violation of the principle of natural justice and curiously enough cited the leading case of Leary v. National Union of Vehicle Builders reported in (1972) All. E.R. 713 and also the case of Shri Laxmidhar Panigrahi v. State of Orissa, AIR 1974 Orissa 127 and the Order No. A-55 to 56/86-NRB dated 6-2-1980 rendered in the case of Shri Rohit Mehra and Others v. Collector of Central Excise Customs, Chandigarh in which the said cases were also considered. A perusal of the said authorities would show that the ratio of all the decisions is that deficiencies of natural justice before trial Tribunal cannot be cured in subsequent proceedings. In other words, if the opportunity to defend is not afforded by the trial Tribunal, the affording of the opportunity to defend by the Appellate Court in subsequent proceedings would not cure the deficiency of natural justice which was not granted by the trial court. There can be no quarrel with the said ratio. On the other hand, all the courts including this Tribunal have cherished the said principle of law as and when occasion arose and whenever it was found that an opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h new serial numbers was used when the voucher book in use during the relevant period was not used for these alleged transactions. There is also evidence on record that the aforesaid three parties were related to the appellant. It is an admitted fact on record that Amarjit Singh did not have any voucher at the time of recovery of the contraband primary gold and the defence that Nirmal Singh inadvertently failed to hand over the voucher concerned to Amarjit Singh appears to be a cooked up story. The manner in which the gold ornaments were acquired and melted also appears to be a cooked up story. The deficiencies as pointed out in the impugned order also goes to the root of the case and the inconsistencies in the versions given by the appellant and the aforesaid persons also belie the claim of the appellant. Under these circumstances, the Adjudicating Authority, in our opinion, has rightly concluded that the appellant has failed to prove his claim regarding the ownership of the gold in question. 11. Before we part with the case it deserves to be mentioned here that the claim of the appellant in appeal that the contraband primary gold in question be ordered to be delivered to him on ..... 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