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TMI Blog2015 (12) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... of one Sri Krishna Ballav Ray of Madhapur, Kendrapara in the undivided district of Cuttack (now in the district of Kendrapara). In course of the search operation, the officers heard a sound of throwing some metals into the open well in the courtyard of the residential premises of said Krishna Ballav Ray. On verification, a cloth bag was recovered from the well containing 34 pieces of circular slab of gold in crude form of uneven shape and size. Accordingly, the Officers seized the said primary gold weighing 1171.500 grams in a cotton bag containing said gold on 04.02.1974, under a Panchanama. Said Sri Ray did not volunteer to give any statement on that. However, the independent Panchas, namely, Sri Babaji Charan Behera and Maheswar Sahu, who were present and had witnessed search operation, gave such statements which were recorded to be considered in the adjudication proceeding. Accordingly, show cause notice was issued to Sri Ray on 28.06.1974, from whose possession the gold in question was seized. Sri Ray, in reply to the show cause notice, sent a letter to the Additional Collector of Customs and Central Excise, Bhubaneswar on 10.07.1974. Taking into consideration the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dispose of the proceeding for confiscation after giving notice to the plaintiff. Till then, the gold seized cannot be disposed of in any manner. 15. In the result, First Appeal is allowed. No costs. Trial Court shall return M.O. I to the plaintiff after the period of appeal against this judgment expires." 4. In obedience to the direction in the aforesaid F.A., the Department issued fresh show cause notice on 14.05.1990 (Annexure-7) to Smt. Kamala Rani Ray, wife of Krishna Ballav Ray as well as to said Krishna Ballav Ray in terms of the direction of this Court. On hearing the parties, the Additional Collector vide his order dated 13.08.1990( Annexure-8) directed confiscation of those 34 pieces of gold weighing 1171.500 grams under Section 71 of the Act. However, he refrained from imposing any penalty on Smt. Ray. Assailing the said order, the opposite party preferred Appeal No.4/GC/BBSR/92 before the Collector of Central Excise (Appeals), Kolkata, who by his order dated 30.04.1992 (Annexure-9) set aside the order under Annexue-8 and remanded the case for de novo adjudication by obtaining expert opinion as to whether the seized gold bangles were ornaments or not. Being aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referring to the explanation to the second proviso of Section 79 of the Act submitted that notice of confiscation should be given to the owner of the gold within six months from the date of seizure of the gold or within such further period as the Collector of Central Excise or of Customs may allow. Where a fresh adjudication under the Act is initiated, the period of limitation would be six months from the date of order of fresh adjudication or as extended by the Collector. In the instant case, there is no direction for fresh adjudication by any authority under the Act. Further, this Court in F.A. No.122/77 in exercise of Civil Appellate jurisdiction directed to give a chance of hearing to Smt. Kamalarani Ray, which at any stretch of imagination, can be construed to be a direction for fresh adjudication. Thus, the limitation provided under Section 79 of the Act is not applicable to the instant case. 8. Mr. Acharya, learned Counsel for the opposite party, on the other hand, submits that explanation to the second proviso to Section 79 of the Act clearly provides for an order directing initiation of fresh adjudication. Thus, the limitation period should be computed from the date of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it was seized. The explanation to second proviso further makes it clear that where a fresh adjudication under the Act is directed, the period of limitation is six months from the date of such order for adjudication. Mr.Mishra submitted that since there is no order of fresh adjudication by any authority under the Act and the notice in question was only issued pursuant to the direction of this Court in exercise of power under Section 96 of the CPC, the period of limitation is applicable to the case at hand. The submission is not acceptable for the reason that the explanation as referred to above does not speak of 'order' by the authority. Moreover, the word 'order' in the explanation to second proviso of Section 79 of the Act refers to 'order for fresh adjudication'. Thus, it no doubt includes the direction for fresh adjudication made by this Court in exercise of civil appellate jurisdiction. Admittedly, the process of fresh adjudication was initiated pursuant to the direction of this Court in F.A. No.122/77 without assailing the judgment in any higher forum or raising any objection to the competency of this Court to give such a direction in exercise of civil appellate jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visaged in second proviso to Section 79 of the Act. Hence, this question is answered in the negative against the petitioner. 11. Arguing on the question No.(ii), Mr. Mishra, learned Senior Advocate for the Department strenuously contended that the question as to whether the seized articles were primary gold or ornaments is not an issue before the CEGAT and thus, any finding of the CEGAT to the effect that the seized gold was the ornaments, is vitiated. Mr. Acharya, learned counsel for the opposite party refuting the same contended that the question as to whether the seized gold was primary gold or ornaments was the sole issue to be determined in the entire proceeding and all the courts have discussed it in detail on the said issue and gave their respective findings. Thus, the contention of Mr.Mishra is baseless and needs no consideration. 12. To ascertain the correctness of the submission of Mr.Mishra, learned Senior Advocate for the opposite party we perused the entire case record, more particularly the orders annexed to this petition, including the impugned order. On perusal of the record, it appears that the main contention of the Department in the entire proceeding including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny of them, and includes parts, pendants or broken pieces of ornaments. The explanation to the definition states that, for the purposes of the Act, nothing made of gold, which resembles an ornament, shall be deemed to be an ornament unless the thing (having regard to its purity, size, weight, description or workmanship) is such as is commonly used as ornament in any State or Union territory. The evidence on record is that bangles of purity, size, weight, description and workmanship akin to the seized bangles are in fact used as ornaments by ladies. My observation of the bangles is that there is nothing in the workmanship thereof which can exclude them from being used as ornaments or called such." 14. For effective adjudication of questions Nos.(ii) and (iv) formulated in the present proceeding, this Court, in course of hearing, felt it necessary to examine the seized gold and directed for its production vide order dated 10.09.2015 which was produced before this Court on 08.10.2015. On examination of the bangles produced it appears that there is design in each of the bangles on their outer side and the inner side of each of the bangles was smooth. Moreover, this being a question o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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