TMI Blog1987 (3) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1986. The said notice is stated to have been served by refusal by one Subodh Khanna, the brother as well as an employee of the petitioner concern as well as by affixation on the notice board of the Gold (Control) Officer. 3. The case of the petitioner is that in the first place Subodh Khanna had not refused to accept the notice and secondly, service of notice on Subodh Khanna could not be treated as valid service on the petitioner, Subodh Khanna being neither the agent of the petitioner nor having been authorised to accept the notice on his behalf. 4. For a proper appreciation of the contention raised the parties, it will be convenient to extract here the relevant provisions, namely, Section 79 and 113 of the Act :- 79. GIVING OF AN OPPORTUNITY TO THE OWNER OF GOLD ETC. - No order of adjudication of confiscation or penalty shall be made unless the owner of the gold, conveyance, or animal or other person concerned is given a notice in writing :- (i) informing him of the ground on which it is proposed to confiscate such good, conveyance or animal or to impose a penalty; (ii) giving him a reasonable opportunity of making a representation in writing within such reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3.1979 held relying on the Assistant Collector of Customs v. Charan Dass Malhotra (A.I.R. 1972 S.C. 689) that giving of the notice contemplated under Section 79 means that the notice must be received by the person from whose possession the good is seized within six months. With respect we entirely agree with this decision. The date on which the notice in question was delivered to the petitioner thus becomes all important in this case. 7. We shall first examine the stand taken by the respondents in their counter-affidavit on this issue. In paragraph 23 of the counter-affidavit it is alleged that the show cause notice under section 79 was sent to the petitioner by registered post on 20.10.1986. Simultaneously, an attempt is stated to have been made to tender the show cause notice to the petitioner personally by the Central Excise Officers on 20.10.1986 by delivery of the show cause notice at his shop. Not finding the petitioner at his shop, the notice was sought to be tendered to his brother Subodh Khanna who looks after the shop in petitioner s absence and is also an employee of the petitioner. Subodh Khanna, however, refused to accept the notice whereupon the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sen Kesarwani, one of the two witnesses alleged to have been present at the petitioner s shop at the time of the said refusal has filed his affidavit denying having visited the petitioner s shop on 20.10.1986, much less witnessed the refusal. He says the Assistant Collector came to his shop and coersed him into signing some papers under the threat of punitive action. Being a licenced gold dealer he gave in. The petitioner further states that the names of the witnesses not having been disclosed in the counter affidavit, the petitioner could not have the version of the other supposed witness. 11. The respondents have not cared to meet these very categorical assertions made by the petitioner in the rejoinder affidavit even though the court had invited them to do so if they so desired. 12. In this state of the record service by refusal by the petitioner s brother has not been proved to our satisfaction. 13. However, even assuming that the notice was tendered to Subodh Khanna and that he declined to accept the same, in our opinion, such a tender could not, in the facts of the present case, be regarded as a valid service on the petitioner. The petitioner s categorical assertion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odh Khanna is an employee of the petitioner and was looking after the shop in the absence of the petitioner according to the respondents, nothing else has been brought on the record which might sustain the plea that he was an agent of the petitioner authorised to receive notices on his behalf. That being so, the alleged tender of the notice to Subodh Khanna could not be regarded as service on the petitioner. 16. It must be borne in mind that a seizure effected under the Gold Control Act has serious implications in that it deprives the dealer, even if temporarily, the use of the ornaments and the right to transact any business in respect thereof. The power of seizure founded on a mere reasonable belief is undeniably an extraordinary power. The precipitation of a period of limitation under the second proviso to Section 79, therefore, in the context conveys an anxiety on the part of the Legislature that the seizure should not last beyond reasonable limits which the Legislature has put at six months from the date of the seizure. It is for this reason that the power of extention of time has been vested in the Collector, an officer superior in rank and also an appellate authority. View ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has already filed his objections and the same are pending consideration before the Gold Control Officer. Further the petitioner has a right of appeal against the ultimate order of confiscation if and when the same is passed. 21. Lastly, the learned counsel submitted that if no notice is given under section 79 within six months of the date of seizure the authorities cannot legally proceed with the case even in regard to the matter of confiscation. The second proviso to Section 79 merely entitles a person from whose possession the gold is seized to the return of the ornaments. The language of Section 79 or the scheme of the Act does not justify the conclusion that if the notice is not served within six months the proceedings for confiscation ipso facto or automatically lapse. We, however, do not wish to pronounce finally on the validity of this argument at this stage. If and when an order of confiscation is eventually passed against the petitioner, it would be open to him to take this plea by way of appeal and failing that by way of a petition in this court under Article 226 of the Constitution. 22. In the result, the petition succeeds and is allowed. The respondents ..... 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