TMI Blog2015 (12) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... use with regard to the allegations made and is provided with the materials to that effect, she would not be in a position to give reply to the same. Thus, for compliance of the principles of natural justice, it was incumbent on the Additional Collector to give an opportunity to the opposite party to reply on the question of purity of the gold seized. As such, the opposite party had no occasion to give any reply on the report, if any, of the Government mint with regard to purity of the gold seized. At this stage, Mr.Mishra contended that the gold seized were of highly purity and ordinarily ornaments are not prepared from the gold of high purity. This is again a question of fact. Evidently, neither any question with regard to the same was raised nor evidence to that effect was adduced by the Department at the time of adjudication before the Additional Collector. Hence, the same is not available to be raised by the petitioner at the stage of reference to this Court. Evidently, neither any question with regard to the same was raised nor evidence to that effect was adduced by the Department at the time of adjudication before the Additional Collector. Hence, the same is not available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized. 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 of Sri Ray made in the said letter, the Department vide its order dated 05.10.1974 (Annexure-1) held the gold seized to be primary gold and Sri Ray as the owner of the said gold. Consequently, the seized gold was confiscated for violation of Section 8 of the Act and penalty of ₹ 1,000/- was imposed on said Sri Ray under Section 74 of the Act. Being aggrieved by the said order under Annexure-1, Sri Ray moved the appellate authority, i.e., Collector, Customs and Central Excise, Bhubaneswr. The Appellate Authority vide its order No.29/Bhubaneswar/1977 dated 21.06.1976 (Annexure-2) rejected the appeal and upheld the order of the learned Additional Collector. Thus, Sri Ray moved the Revisional Authority, i.e., Government of India in a Revision which also came up to be rejected confirming the order under Annexures-1 and 2. Against the said revisional order, no reference was filed. 3. In the meantime, Smt. Kamala Rani Ray (opposite party), wife of Sri Krishna Ballav Ray filed T.S. No.76/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 aggrieved, the Department filed Appeal before the CEGAT in G-7/93 against the order under Annexure-9 and the opposite party also preferred an appeal against said order in G-3/93. Both the appeals were heard together and CEGAT vide its Order No.A434 and 435/CAL/93 dated 26.07.1993 allowed the appeal No.G-3/93 filed by the present opposite party and dismissed the appeal in G-7/93 filed by the Department holding that the gold seized are gold ornaments. Against the said judgment, the present reference is filed. 5. This Court vide order No.10 dated 02.12.1998 framed the following questions for adjudication of the reference. (i) Whether the learned CEGAT is correct in concluding that the show cause notice dt.14.5.90 is hit by limitation under section 79 of the Gold Control Act considering decision not by statutory authority taking into consideration the judgment dated 17.10.89 and not the decree dated 25.1.90 when decree is also a part of the order of the Court for drawing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgment because the decree is only a formal expression of final adjudication. The effective direction is made only in the judgment. In the instant case, pursuant to the judgment of this Court dated 17.10.1989 in F.A. No.122/77 notice was issued on 14.05.1990, which is clearly barred by limitation. Hence, the question raised by the petitioner has no force and should be answered in the negative. 9. In order to analyze the rival contentions of the parties on question No.(i), it would be profitable to reproduce Section 79 of the Gold (Control) Act, 1968, which reads as follows:- 79. Giving of an opportunity to the owner of gold etc. - No order of adjudication of confiscation of 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 grounds on which it is proposed to confiscate such gold, conveyance or animal or to impose a penalty ; and (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. The authority after initiating the proceeding pursuant the direction of this Court, cannot possibly raise any objection to such direction after pronouncement of the impugned order. In addition to the above, the limitation is always computed from the date of the judgment and not from the date of decree because decree is only a formal expression of final adjudication of the suit. This view gets support from a decision in the case of Sk Jalil Anr. Vs. Gopal Charan Mohanty Ors., reported in 1975 (1) CWR 182 : 41 (1975) CLT 359, wherein this Court relying upon a Full Bench decision of this Court in the case of Sri Ramachandra Mardaraj Deo Vs. Bhalu Patnaik Ors, reported in AIR 1950 Ori. 125, held as under: 8. Order 20, Rule 7, Code of Civil Procedure lays down that the decree shall bear the date on which the judgment was pronounced. As the date of decree under this Rule is the date of the judgment, the date of the decree as le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 the suit filed by the opposite party as well as in the First Appeal arising there-from, the primary contention of the Department was that the seized gold were round shaped primary gold of uneven shapes and not fit to be used as ornament. Thus, the contention of Mr.Mishra is wholly misconceived and baseless so far as the finding of the CEGAT to the effect that the seized gold was ornaments is perverse, does not hold good. 13. In respect of the finding to the effect that whether the seized gold was the ornament, the CEGAT at paragraph-8 of the impugned order under Annexure-10 has vividly discussed the contentions raised and came to a conclusion that the seized gold was the ornaments. It is worth mentioning here that the gold seized was produced before the Additional Collector, who on examination has held as follows:- The gold in question was brought by the Officer of Cuttack Division and the container of the gold contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 of fact and a finding has already reached by the fact finding authority, the same cannot be interfered with unless the same is illegal, based on no evidence and perverse. Apparently, no such case could be made out by Mr.Mishra, learned Senior Advocate for the Petitioner to take a different view in the matter. 15. Arguing on the question No.(iv) framed by this Court, Mr.Mishra, learned Senior Advocate submitted that learned Tribunal has erred in law in not taking into consideration the result of the purity test specifically when purity was established by test in Government mint is not disputed. Mr.Acharya, learned counsel for the opposite party, on the other hand, submitted that the learned Tribunal was correct in concluding that the purity of the ornaments cannot be taken into consideration as the same was not permissible in view of the fact that no such allegation was made in the show cause notice issued to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
