TMI Blog2023 (1) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... as the legal heir he has no authority to question and raise doubts on such consideration. In support of the stand of the Appellant, with regard to 11 gold Balas to be ornaments, the evidence is available on record such as statement of important personality of the area and affidavits filed by the then Deputy Minister of Orissa Cabinet and the then Member of Orissa Legislative Assembly from Koksara Constituency in the district of Kalahandi. The finding of the Adjudicating authority, holding it primary gold is based on mere surmises. The Adjudicating authority failed to appreciate the evidence adduced by the claimant of the gold Balas that it is usual and common that the said gold Balas are used by the people of that locality as ornaments in their neck and also wrist. It is clear that the Adjudicating authority is of the opinion that 11 gold Balas are ornaments. Had it been otherwise, he would have re-adjudicated the matter afresh - the Principal Commissioner passed order for confiscation of the gold Balas in question and further imposed penalty of Rs.50,000/- (Rupees Fifty Thousand only) on a dead person. It is settled principle of law that any order passed against a dead pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating authority held the eleven gold balas as primary gold and passed order of confiscation under Section 73 of Gold Control Act and also levied fine of Rs.2,50,000/- under Section 74 of the Act. The order of the Adjudicating authority was challenged in Appeal. In Appeal the Appellate authority vide order dated 30.01.1980 was pleased to affirm the conclusion with regard to the gold balas and further be pleased to reduce the penalty. The said order of the Appellate authority was challenged before the Revisional Court and the Revisional court, by virtue of order dated 24.06.1981 was pleased to pass order for fresh adjudication by the Adjudicating authority in case of certain mortgaged item and upheld the confiscation of the item belonging to the Appellant s family and reducing the penalty amount to Rs.70,000/-. A Writ Petition in OJC No.1891 of 1981 was filed before the Hon ble High Court of Orissa challenging the orders passed by the authorities under the Gold Control Act, 1968 directing confiscation of the gold recovered from the petitioner s premises and imposition of penalty. The Writ Petition was allowed setting aside the order of confiscation and penalty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old, the order of the Adjudicating authority was challenged in Appeal. The Appellate authority partly allowed the appeal. Thereafter, the order of the Appellate authority was challenged before the Revisional authority. The Revisional authority also partly allowed the revision application. Against the order passed by the Revisional authority, the Appellant approached the Tribunal. The Tribunal vide order dated 16.07.1992 was pleased to remit back the matter to the Collector, Central Excise for reconsideration after setting aside the order of confiscation and penalty. When the matter was not adjudicated by Adjudicating authority as per direction of the Hon ble High Court for a period of 27 years, the Appellant filed a representation before the Chief Commissioner, CGST, Central Excise Customs, the highest authority of the Department for release of the gold ornaments. The Chief Commissioner, CGST, Central Excise Customs also did not consider the representation. Therefore, the Appellant approached the Hon ble High Court of Orissa. The Hon ble High Court directed the Chief Commissioner, CGST Central Excise Customs to consider the representation of the Appellant. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Order of the Appellate authority dated 31.01.1980. (b) This Appeal was filed by Shri Sailendra Narayan Panda, s/o Late Dilip Kumar Panda claimed to be the legal heir of Late Binod Bihari Panda. However, no succession certificate was submitted against the said claim. It is also unknown whether Shri Sailendra Narayan panda is the only successor-in-interest of Late Binod Bihari Panda or any other successor-in-interest of Late Binod Bihari Panda are there or not and if any should be the coapplicant of this Appeal petition. Thus, successor-in-interest of Late Binod Bihari Panda (the noticee to impugned Show Cause Notice) has to be determined first before proceeding further. These defects are to be removed. 4.2 From the copy of the Order-in-Original dated 31.12.2020 it appears that this Appeal relates to the Gold (Control) Act, 1968 which was repealed by Gold (Control) Repeal Act, 1990 and the dispute is whether the seized gold was primary gold within the meaning of Section 2 of the Gold (Control) Act, 1968. 4.2.1 The Appellant, only on the basis of a certificate and an affidavit issued by the local representative holding public office claimed that the said seized g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Binod Bihari Panda. Now the question of legal heir being raised by the Authorized Representative for the Department in the course of hearing does not have any legs to stand at this juncture. This is totally uncalled for and the Authorized Representative before raising such legal issues should have properly gone through the records of the case and once Shri Sailendra Narayan Panda has been considered as the legal heir he has no authority to question and raise doubts on such consideration. 8. The 11 gold Balas of the Appellant are lying with the Department since 02.04.1976. The Hon ble High Court by virtue of order dated 16.07.1992 was pleased to set aside the confiscation order passed by the Adjudicating authority holding that the said 11 gold Balas are primary gold and the Hon ble High Court was further pleased to remit back the matter to pass an order to the effect that whether the said 11 gold Balas are primary gold or the ornaments, based on the evidences available on record. The Hon ble High Court in the said judgement was pleased to give a finding that no definite tests have been prescribed under law to come to a conclusion as to whether a gold is primary gold within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed against a dead person is a nullity. 12. It is submitted that 11 gold Balas of the Appellant are lying with the Department since 02.04.1976. The Hon ble High Court by virtue of order dated 16.07.1992 passed in OJC No.1891 of 1981 was pleased to set aside confiscation order passed by the Adjudicating authority holding the said 11 gold Balas as primary gold and also levying fine in respect of the gold Balas. The Hon ble High Court was further pleased to remit back the matter to the Adjudicating authority for reconsidering the question as to whether those gold Balas are primary gold, as contended by the Department, or are ornaments as contended by the Appellant. 13. When the Adjudicating authority was pleased to hold the so-called Balas as primary gold, the order of the Adjudicating authority was challenged in Appeal. The Appellate authority partly allowed the Appeal. Thereafter, the order of the Appellate authority was challenged before the Revisional authority. The Revisional authority also partly allowed the Revision. Against the order passed by Revisional authority, the Appellant approached the Hon ble High Court. The Hon ble High Court by virtue of order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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