TMI Blog1986 (5) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... was occupied only in other vocations. He was working as a teacher. 3. At the time of search, Shri Mrigendra Nath Gayen, Shri Debendra Nath Gayen, Shri Tarak Nath Gayen and Shri Thaneswar Gayen were present but Shri Niranjan Gayen was not present. 4. The officers searched both the residential portions as well as the working portions of the premises and drew up Panchnama, dated 4-3-78 in which the quantity of gold and gold ornaments, which had been recovered from the iron safe and rack placed in the room just behind the working premises as also those recovered from the working premises, were indicated. This Panchnama was signed by all those present including Shri Mrigendra Nath Gayen and two witnesses. 5. Subsequently, the Collector issued an order, dated 1-7-1978 (page 67) in terms of Section 66(3) of Gold Control Act indicating the list of documents seized. In this order also, the name of Shri Mrigendra Nath Gayen figures. 6. In the statement which was recorded on 4-3-1978 after the search, Shri Tarak Nath Gayen, Shri Debendra Nath Gayen, Shri Thaneswar Gayen and Shri Mrigendra Nath Gayen figure. The statement was given by Shri Tarak Nath Gayen and the other three agreed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to draw attention to the Supreme Court judgment in the case of Charan Das Malhotra reported in A.I.R. 1972 S.C. page 689. He would in particular draw attention to Para 17 thereof in which it has been held that in case no notice was given under Section 110(2) of the Customs Act within the prescribed or the extended period after giving suitable opportunity for grant of extension that the goods were liable to be returned. In this judgment, the Hon ble Supreme Court had upheld a Division Bench judgment of the Calcutta High Court ordering restoration of goods to the respondent. 16. He would also like to draw attention to the order of the Tribunal passed in the case of Hazarilal Gauri Shankar Badauni v. Collector of Central Excise, Kanpur [1985 (19) E.L.T. 200 (Tribunal) (para 9)] to show that Section 79 was mandatory. 17. It was also his submission that unfortunately Shri Mrigendra Nath Gayen has since expired and his brother Shri Debendra Nath Gayen has also died. Therefore, there is no way now by which this defect could be rectified. 18. It was also their submission that the appellant wanted to produce certain witnesses before the Collector in support of their contention that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther Shri Niranjan Gayen and his uncle Shri Debendra Nath Gayen. It is noteworthy that he does not refer to Shri Mrigendra Nath Gayen s ownership of this gold and gold ornaments. 25. Of course, in the reply to the show cause memo, they have changed their stand and brought in the name of Shri Mrigendra Nath Gayen also. 26. Shri Bhowmik further stated that in view of the submissions made by the learned advocate, he would like to seek further instructions and thereafter make further submissions in the matter and for this purpose he would require some time. 27. Shri Bhowmik stated that in the case records with him, he has come across another Panchnama, dated 4-3-1978 showing nil recovery, which mentions the name of one Shri Nirmal Chandra Gayen whose residential premises had been searched and, therefore, he wanted to make sure by necessary verifications whether it related to the present case and was relevant for this purpose. 28. The learned advocate Shri Banerjee sought leave of the court to submit that in this case, there was only one Panchnama for both residential and working premises and if there is another Panchnama with the Department, in all probability, it might relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said room situated in the ground floor. When this observation is read with the reply to the show cause notice, it would be seen that again they have changed stand inasmuch as they have stated that some ornaments were recovered from the bed room of the appellants. However, according to their own submission in the reply, the bed room was on the first floor whereas the room from which the recovery was made was on the ground floor adjacent to the working premises as apparent from the description in the Panchnama. 35. It was also his submission that in the statement, dated 4-3-1978, it has been mentioned by Shri Tarak Nath Gayen and Shri Niranjan Gayen had gone to their village house. Niranjan was his younger brother who was not present during the search and Shri Tarak Nath had stated that I know very well that he has no G.S. 23 Register . Thus, it would be seen that at the time of seizure, no G.S. 13 Register pertaining to Shri Niranjan Gayen was available and it was stated by his brother, Tarak Nath Gayen that Shri Niranjan Gayen had no such register. Therefore, subsequently when the G.S. 13 Register was produced by Shri Niranjan Gayen, it was considered by the Collector as unreli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeared for hearing. However, this does not mean that there was no application of mind by the Collector in respect of the facts and circumstances of the case as a whole. 42. During the course of hearing, the Collector had allowed full opportunity to the appellants to show whether the seized goods were duly accounted for in any of the registers including the new G.S. 13 Register. However, the appellants failed to co-relate the articles seized with any of the entries made therein. 43. The appellants have raised the question of determination of liability of the individual concerned. In this connection, he would like to draw attention again to the statement, dated 4-3-1978 in which it has been mentioned that the gold, gold ornaments and gold sovereigns which the officers have got from the rear side room of our working premises belong to me, Shri Tarak Nath Gayen, my brother Shri Niranjan Gayen and my uncle Shri Debendra Nath Gayen. Generally, we carry on our business from the same place so, our gold and gold ornaments have not been kept separately. Thus, the appellants have themselves accepted the joint liability in the matter. The facts and the circumstances of the case disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and control of the members of the family, were required to be returned and restored in terms of Section 79 of the Gold Control Act. As Shri Mrigendra Nath Gayen is no longer alive, as already submitted, this deficiency and defect cannot be corrected now and the only course open for the tribunal was to set aside the order. 48. It was also his submission that since the department has accepted that the name of Shri Tarak Nath Gayen was mentioned mistakenly, therefore, his plea of non-application of mind has great force. 49. He would also like to clarify that although one of the brothers Shri Thaneswar Gayen was not a certified goldsmith yet he was a joint owner of the property seized and in fact, the necklace which was recovered from the room behind the working place belonged to Shri Thaneswar s wife. 50. It was also his submission that normally, a person could be expected to reply to the department s charges only after the issue of show cause notice and the department cannot insist or take advantage of the fact that no submissions were made or no documents were produced before the issue of the show cause notice. 51. As a matter of fact, insofar as G.S. 13 Register produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As admittedly no show cause notice has been issued to Shri Mrigendra Nath Gayen by the department, therefore, in terms of Section 79 of the Gold Control Act, the gold seized from his custody or control, is required to be returned. 60. The learned counsel has also mentioned that Shri Mrigendra Nath Gayen is no more alive and his brother Shri Debendra Nath Gayen is also no longer alive and as such, it is no longer possible for the department to correct the deficiencies and a remand would not serve any purpose as the department has not determined the individual liability of the persons concerned. However, even if the department had done so, in terms of provisions of Section 79 (read with Section 99) which is mandatory, the gold would have been required to be returned for non-compliance with these provisions. 61. As Shri Mrigendra Nath Gayen was head of the family and a certified goldsmith and the business was the joint family business and Shri Mrigendra Nath Gayen had not served with any notice, we hold that the entire quantity of gold (including primary gold articles and ornaments) is required to be returned to the appellants. It is ordered accordingly. 62. In view of this posi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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