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Hari Charan Kar Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1985)(19)ELT224Tri(Kol.)kata
AppellantHari Charan Kar
RespondentCollector of Central Excise
Excerpt:
.....gold and gold ornaments came to 831.5 gms. some private accounts were also seized from which the gold control officers concluded that there have been transactions of gold of an illegal nature. the seizure was effected on 15-5-76 while the transactions showed in the private accounts were alleged to have been taken place in the year 1966-67. the gold ornaments were said to have been wrapped up in jewellery papers with names of many people written on tags. the appellant's story was that they have been given to him by those people whose names appear on the tags for safe custody. in addition, ornaments containing means of other persons, ornaments inherited from his father were also found. the name tags, however, bore no addresses. the counsel for the appellant stated before the tribunal on.....
Judgment:
1. This Reference Application filed by Shri Hari Charan Kar arose from Order No. 383/Cal/l983/2300 dated 22-9-83 passed by the Customs, Excise & Gold (Control) Appellate Tribunal at its Calcutta Bench. The case arose as a result of a seizure and confiscation of Gold and Gold ornaments from the house of Shri Hari Charan Kar. The total weight of the gold and gold ornaments came to 831.5 gms. Some private accounts were also seized from which the Gold Control Officers concluded that there have been transactions of gold of an illegal nature. The seizure was effected on 15-5-76 while the transactions showed in the private accounts were alleged to have been taken place in the year 1966-67. The gold ornaments were said to have been wrapped up in jewellery papers with names of many people written on tags. The appellant's story was that they have been given to him by those people whose names appear on the tags for safe custody. In addition, ornaments containing means of other persons, ornaments inherited from his father were also found. The name tags, however, bore no addresses. The Counsel for the appellant stated before the Tribunal on 5-3-83 that no investigations were made with the persons whose names were given in the Tags. Had this been done, the truth would have been ascertained that they were not part of any illegal transactions. He said that this was an important point of law because the Collector was bound to make investigations when the names of owners were found in the Tags and his failure to do so resulted in a failure to comply with the law. The Counsel for the appellant next said that the seizures were made before the Gold Control Act, 68 came into operation. He quoted the judgment of the Supreme Court in the case of Rayola Corporation reported in AIR 1970 S.C.494-Cr. L.J. 588 wherein the Supreme Court held that Sec. 6 of the General Clauses Act did not apply when a repeal is of a Central Act and of a Rule. It was also held that offences committed under the previous Acts must be prosecuted and punished before the Act expires and that as soon as the old Act expires, any proceeding taken against a person under it would terminate. The Counsel therefore, argued that Sec.

116(2) of the Gold Control Act,' 1968 will not save these proceedings because they were not a continuation of the proceedings initially held but fresh proceedings were initiated in the new Act in respect of an offence committed before its enforcement. The Counsel stated that this is also an important point of law. He, therefore, said that a reference is required to be made under Sec. 82B of the Gold Control Act, 1968.

2. The Counsel for the Department said that there was no need for any reference whatsoever. When the Collector did not make investigations to determine from the persons whose names were given in the tags it was for a very good reason that the tags bore no addresses. If the names were genuine, the addresses would have been given and worthwhile investigations could be made, and in such cases an investigation made immediately after the seizure before the persons have had time to work out a plan if they are confronted by the Gold Control Officers. It is certain that the names were not genuine names and that the persons were fictitious ones and that the method was adopted only to frustrate investigations. Investigations made after the offender have had time to work out plans of defence would be meaningless. He pointed out that the judgment of the Supreme Court in Rayola Corporation would not bar these proceedings contrary to what has been claimed by the counsel for the applicant as the offence committed before the 1968 Act continued to be offence under the New Act also. He referred to the judgment of the Andhra Pradesh High Court in Writ Petition No. 2294(74), Gandhi & Co.

v. Asstt. Collr. of Central Excise, Hyderabad in which the High Court held that new points cannot be raised on a later stage. He quoted AIR 1956 S.C. (77) in which it was ruled that action must be deemed to continue under the New Act. Further, he referred to the judgment of the Supreme Court in Jayantilal Amritlal (1971) AIR S.C. page 1193 in which the court held that the liabilities under the old enactments continued under the new ones.

3. We have heard both the sides and have considered all their submissions. In respect of the investigations or failure to make investigations in respect of ornaments which bore name tags we are of the opinion that the Collector was perfectly justified in not making investigations as demanded by the applicant for the simple reason that the investigation was not possible when the addresses were not given.

The learned counsel for the department rightly pointed out that in cases of this kind, it is impossible to make meaningful investigations unless correct addresses are also furnished. To make investigations afterwards would clearly be making investigations after the accused persons have had time to prepare the grounds so that it would appear that the names were genuine. The fact is that whether the names were of genuine people or not, it was impossible to investigate for want of proper addresses. We are, therefore, not prepared to accept that there has been any failure on the part of the Collector. Furthermore, we do not accept the contention that this was a point of law as maintained by the appellant.

4. We have also read the court decisions quoted by both the sides. We could only like to quote the decision of the Supreme Court in Civil Appeal No. 2605 of 1969 decided on 22-2rl971 in which the Court held that the Gold Control Act does not exhibit a different or contrary intention, proceedings initiated under the repealed law must be held to continue.

5. For ascertaining whether there was contrary intention it was necessary to look at the provisions of the Gold Control Act, 1968. In order to see whether the rights and liabilities under the repealed law had been put an end to by the new enactment, the correct approach was not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it had taken away those rights and liabilities.

There is no doubt in our mind that the new enactment, the Gold Control Act, 1968 kept alive the rights and liabilities under the repealed laws and that an offence or an action that constituted an offence under the repealed law continued to be an offence under the new Law of 1968 and that proceedings can therefore be initiated and taken under the new law even if the offence were committed under the repealed law.

6. For the reasons, we consider that there is no case for a reference and the application is therefore, dismissed.


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