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Hiralal Mithulal Shah & Co. Versus Commissioner of Customs, Central Excise & Service Tax Nagpur

2016 (9) TMI 122 - CESTAT MUMBAI

Excess stock of gold ornaments found in the registered premises of the appellant – confiscation under section 71 of the erstwhile Gold (Control) Act, 1968 – option to redeem on payment of redemption fine and penalty under section 74 of the Gold (Control) Act, 1968 – Held that: - In view of the material facts recorded and the stultifying of an appeal, if any, against the first order, the dismissal of the appeal by the first appellate authority is not tenable. Further, in view of the finding that .....

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ner (AR) for the respondent ORDER The issue of maintainability which has been raised in the matter is disposed of by discharge of show cause notice and the appeal is taken up for hearing. 2. There is considerable satisfaction in disposing off this appeal which has survived long after Parliament rescinded the Gold (Control) Act, 1968. A dispute that has been pending for the last 33 years can now be given a decent burial. 3. The appellant, a gold dealer registered under the erstwhile Act, who was .....

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. 4. Having paid the penalty, the appellant sought relief from the Tribunal [then known as Customs, Excise & Gold (Control) Appellant Tribunal] which rejected the plea of the appellant on the ground that relief from the intermediate appellate authority, viz. Collector (Appeals) had not been sought for. The appellant filed an appeal before the Commissioner of Customs (Appeals), Gold Control Appeals Office, Bombay (as it then was) who refused to entertain the same claiming lack of jurisdictio .....

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/1-Gen-35/92/Appeal (GC) dated 16th September, 1992. According to the official records, the file relating to this matter was sent to Indore on the 28th April 1992. It would appear that no further action was taken by that authority too in the matter. 6. With the aforesaid direction yet to be complied with, the immediate provocation for present appeal commenced with the appellant, who had not exercised the option allowed by the original authority to redeem the gold ornaments, now approaching the A .....

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the original authority to proceed as if there was no appeal pending. The present appeal seeks relief against the dismissal of the appeal by the first appellate authority. 7. In the context of the desire of the appellant to exercise the option to redeem the confiscated gold there is no pre-requisite that pending appeal should be disposed off. The option is available in the order of an original authority and that option is to be exercised within the time-frame stipulated by that authority. It is .....

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he executive. Such a jurisdiction is not vested with the executive. On a perusal of the order of confiscation, it is noticed that there is no time-limit specified for exercise of that option. Exercise of that option cannot, therefore, be denied at any stage and an appeal, even if pending, is not affected by exercise of such option. 8. The Gold (Control) Act of 1968 has ceased to exist in statute books for over two and half decades and a more pragmatic response, even if not specifically provided .....

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ft to the Commissioner of Customs, Central Excise & Service Tax, Wardha whose acceptance of the same was the sole act of redemptory expiation. The pre-requisite for return of confiscated goods has thus been complied with and the physical handing over alone remains to be completed. The consistent stand of the lower authority that the pendency of an appeal precludes the completion of redemption, echoed by Learned Authorised Representative, is no longer tenable. In this context, the findings re .....

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