TMI Blog1989 (4) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... h receive offerings in Hun-dis at the temple. These offerings include inter alia primary gold, articles of gold, gold ornaments etc. These offerings of gold are entered in the prescribed record^ and declared to the Gold Control authorities in the form of monthly returns and are periodically taken to the Government of India Mint at Bombay after obtaining the requisite permission from the Gold Control Administrator, where they are deposited for conversion into standard gold bars, which they receive from the Mint for utilisation for religious purposes such as making of religious coins, gold plating etc with the permission granted by the Gold Control Administrator in respect of a quantity weighing 264.013 kgs at the Government of India Mint, Bombay. The Refinery Officer attached to the Government of India Mint detained a quantity of gold weighing 2325.400 gins under detention memo for further enquiries, out of the lot of the aforesaid gold tendered at the Mint. This gold alleged to be of foreign origin, was subsequently seized under a panchanama by the Gold Control Officers of Bombay Customs (Prev.) Collectorate. In the adjudication proceedings initiated by the Collector of Customs (Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithstanding this position, the Collector has ordered absolute confiscation without giving an opportunity to the proper owner of the property. He also referred to the findings of the Collector, wherein the Collector himself has admitted that the gold is undoubtedly a part of the offerings made by the devotees of the Lord. Hence, the adjudication order passed without a notice to the owner, is contrary to the provisions of Section 124 of the Customs Act and Section 79 of the Gold Control Act, and is therefore required to be set aside. Since no notice can be issued at this stage and the period of six months having been already over, the gold ordered confiscation is required to be restored to the T.T.D. Apart from the short point, he also argued elaborately on the merits of the case. He took us through the letter addressed by the T.T.D. to the Gold Control Administrator, requesting for permission to convert a quantity of 264.013 kgs of gold varieties accumulated from 1-4-1986 to 31-8-1987 into standard gold bars in the Government of India Mint, Bombay and to keep gold bars derived out of the same as reserve stock for preparation of gold dollars and ornaments etc. Thereafter, he took u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence the burden is on the department to establish the illicit origin. He also contended that since no notice has been given to the T.T.D. within the stipulated period of six months, the gold is liable to be returned to the owner. In this context, he cited the judgment of the Calcutta High Court reported in AIR 1975 Cal. 131. Shri Cheriyan also pointed out that there is no distinction made in the Gold Control Act with regard to the foreign gold and other gold. The definition of only primary gold has been given. Any religious institution receiving primary gold has to enter in the prescribed register and furnish monthly return. This has been duly complied with. As per Section 13 of the Gold Control Act, permission has also been obtained from the Gold Control Administrator for depositing in the Government of India Mint for conversion of the primary gold for religious purposes. Hence, confiscation on the ground that the impugned gold is of foreign origin and hence declaration filed and the permission given by the Gold Control authorities do not cover the proceedings under the Gold Control Act, is not tenable. He also contended that if there had been any requirement that foreign gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the conduct of the affairs of the T.T.D. even as per the provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987. He, therefore, contended that the requirement of issuing notice to the owner has been duly complied with. He also maintained that notice to the Chairman and the Executive Officer were issued only in their capacity as Chairman and Executive officer of T.T.D. and not in their individual capacities. Their names have been mentioned only for the purpose of proper service of the notice. 6. After hearing both the sides and perusing the available records, we find that the only issue to be decided in these appeals is whether absolute confiscation of gold bearing foreign mark weighing 2325.400 gms valued at Rs. 7,32,500/- is justifiable under Section 111(d) of the Customs Act and Section 71(1) of the Gold Control Act. 7. On going through the findings of the Collector we notice that he himself is convinced of the bona fides in this case. He has observed as below: Here the facts and circumstances of the case clearly show that none of these respondents were knowingly concerned with the act of illegal importation of gold, liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be held liable for confiscation under Section 71(1) of the Gold Control Act. Hence the order of the Collector confiscating primary gold of foreign origin under the Gold Control Act is required to be set aside. 9. Now the point for consideration is whether the said gold is liable for confiscation under Section 111(d) of the Customs Act. Though the Customs Act is an independent enactment, it is a well known fact that the Gold Control Act has been enacted mainly with a view to prevent receipt and distribution of smuggled gold. It is in the form of a supporting enactment to the Customs Act especially with a view to prevention of smuggling of gold. Import of gold cannot be made by any one excepting with a special permission issued by the RBI. There are special provisions in the Customs Act for throwing this burden of proof on the persons from whose possession and custody foreign gold is seized or from the persons who claimed the ownership thereof, to establish that the gold has been licitly imported in the country. The argument advanced by Shri Cheriyan was that in some of the pieces of gold, foreign markings were not found. All the same we notice that the purity in some cases is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed that this institution has observed all the provisions contemplated in the Gold Control Act, which is intended to lend support to the provisions of the Customs Act. In this view of the matter, taking into account the peculiar nature and circumstances of the case, while we are to uphold the order of confiscation of the gold under Section 111(d) of the Customs Act, we would deem it proper and just to allow its redemption by the Tirumala Tirupathi Devasthanam on payment of a nominal and token fine of Rs. 1,000/- (Rupees one thousand) only. Since the gold has already been brought for depositing in the Mint, the same should be restored to the Govt. Mint for being taken as deposit in the account of the T.T.D. on payment of redemption fine by the appellant T.T. Devasthanam. 11. On the short point argued by Shri Cheriyan, we are not in fully agreement with him that no notice has been given to the owner. We observe that the Chairman and the Executive officer have been served with notices and the findings of the Collector also go to show that the notices have been issued to them only in their capacity as officers concerned with the conduct of the affairs of the T.T.D. Merely, non ..... X X X X Extracts X X X X X X X X Extracts X X X X
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