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Bhagwandas Jhawar Vs. Collector of Central Excise, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 344 of 1980
Judge
Reported in1985(22)ELT40(AP)
ActsCustoms Act; Defence of India Rules - Rule 126-FM(8)
AppellantBhagwandas Jhawar
RespondentCollector of Central Excise, Hyderabad and ors.
Appellant AdvocateC.P. Sarathy, Adv.
Respondent AdvocateK. Subrahmanya Reddy, Standing Counsel for the Central Government
Excerpt:
.....appellant had no clear intention of investing gold as contended and mere presence of application form for investing in gold bonds does not entitle him immunity from law - appeal dismissed. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or..........had obtained did not bear the endorsement of the bank was not material as it was permissible to invest gold in quantities not exceeding 200 grams. sri sarathy argued that it was never the appellant's case that the appellant tried to invest gold in quantities not exceeding 200 grams. his contention was that he intended to invest the entire gold and had procured the necessary form for that purpose. even assuming that there was some misconception on the part of the government of india with reference to that part of the argument, it is found that the government of india has considered the main contention in the later part of the order when it observed that the appellant had no clear intention of investing the gold as contended and the mere presence of an application form does not entitle.....
Judgment:

Alladi Kuppuswami, A.C.J.

1. This is an appeal against the Judgment and order of our brother Justice Jeevan Reddy in Writ Petition No. 3213 of 1978 which was filed by the appellant herein to quash the orders dated 16-5-1970 of the Government of India confirming the order of the Gold Control Administrator, Ministry of Finance, which in turn confirmed the order of the Collector, Central Excise, Hyderabad.

2. On 30-4-1966 the Officers of the Headquarters Preventive Intelligence Unit (Gold Cell) attached to the Hyderabad Central Excise Collectorate Office visited the appellant's premises and enquired whether he was in possession of any primary gold. The appellant replied in the negative. His house was searched and 13 slabs of gold were recovered from an iron safe. Notice was issued to show cause why the gold seized from him should not be confiscated. The appellant submitted an explanation stating that the gold was given to him by his father-in-law long prior to 1963 and that he wanted to invest the same in gold bonds and for that purpose he obtained a gold bond form Sri Asaram Malani on or about 27-4-1966 and filled it up, but on account of a marriage and a feast in his house he could not submit the gold and the form from into the Bank. After an enquiry under the Customs Act, the Collector disbelieved the appellant's case that he wanted to invest the gold in gold bonds. He observed that the form produced by the appellant does not appear to contain the endorsement of the appropriate Bank and the form could not be relied upon to prove the appellant's alleged intention. Ultimately he found the appellant guilty of failing to declare the primary gold in his possession and accordingly directed the confiscation and levied a penalty under Rule 126-L(16). The appeal to the Gold Control Administrator was dismissed. The further revision to the Government of India was also dismissed on 16-5-1970. Challenging the said order, the appellant filed the Writ Petition No. 3213 of 1978 in July, 1978. Justice Jeevan Reddy also observed that there was no reason to depart from the concurrent findings recorded by all the three authorities below.

3. We have heard the arguments of Sri C. P. Sarathy, learned Counsel for the appellant and we are not persuaded to hold that the decision of Justice Jeevan Reddy is in any way incorrect.

4. It was strenuously argued by Sri Sarathy that the appellant had obtained the necessary forms and therefore there was no clear intention not to declare the gold. Apart from the fact that the form was not obtained from the proper authority, one strong circumstance relied upon by the learned Judge and the authorities below is that the appellant denied that he was in possession of any primary gold when the concerned officers came of his house and questioned him and the gold was found only after a search of the appellant's house. If really his case that the gold was given to him by his father-in-law even before 1963 and that he intended to invest it in gold bonds and obtained the form for that purpose is true, one would expect him to mention that to the authorities instead of denying that he was in possession of any gold. Sri Sarathy submitted that it is not correct to say that the appellant denied that he was in possession of the gold and referred us to some evidence in this connection adduced in the criminal proceedings which were initiated against him in respect of the same matter. It cannot be denied that the evidence given by some persons in those criminal proceedings is not admissible in the proceedings which culminated in the writ petition. This Court is bound by the findings recorded by the authorities below unless it comes to the conclusion that such findings are perverse or based on no evidence. It cannot be said that the findings reached by the authorities below are of such a character.

5. It was also argued that before the last date prescribed for purchasing the gold bonds, the authorities had no power to seize the gold. This contention was rightly rejected by the learned Judge. Various notifications referred to by the learned Judge do not prohibit the authorities from inspecting the premises or seizing or confiscating gold if the possession thereof is found to be violative of the Rules. It was also argued that under Rule 126-FM sub-rule 8(a) of the Defence of India Rules whenever confiscation of any gold is authorised, the officer may give the owner of the gold an option to pay in lieu of confiscation such fine as the said officer thinks fit. It was submitted that the officer did not exercise his mind on this aspect and did not direct the owner to pay any fine in lieu of confiscation. The provision does not compel the authorities to give an option. It only enables them to give the owner an option to pay fine in lieu of confiscation. When the authorities did not choose to exercise this discretion and give an option, it cannot be said that they are acting illegally or contrary to the Rules.

6. It was also argued that the confiscation of the gold was out of proportion to the violation of the relevant Rules. In this connection reference was made to a decision of a Bench of this Court in. W.A. No. 321 of 1969, dated 23-11-1972 where dealing with the Customs Act, it was observed that the primary purpose of levying the penalty is to make the levy a deterrant and not to treat the punishment as retributive. This case has no application to the facts of the present case which relates to confiscation of gold. Under the Rules, the authorities are bound to confiscate the gold unless they give an option to pay fine in lieu of confiscation under Rule 126-FM sub-rule 8(a).

7. It was further contended that the Government of India in its order was totally under a misconception regarding the case of the appellant. It was observed therein that it was urged by the appellant that the fact that the application which the appellant had obtained did not bear the endorsement of the Bank was not material as it was permissible to invest gold in quantities not exceeding 200 grams. Sri Sarathy argued that it was never the appellant's case that the appellant tried to invest gold in quantities not exceeding 200 grams. His contention was that he intended to invest the entire gold and had procured the necessary form for that purpose. Even assuming that there was some misconception on the part of the Government of India with reference to that part of the argument, it is found that the Government of India has considered the main contention in the later part of the order when it observed that the appellant had no clear intention of investing the gold as contended and the mere presence of an application form does not entitle the appellant to immunity from law. It cannot, therefore, be said that the order of the Government of India is vitiated merely because it was mistaken in respect of one part of the argument when the Government of India has given a decision on the main argument advanced.

8. For all the above reasons, we do not see reason to interfere with the well considered judgment of our brother Justice Jeevan Reddy. Hence the appeal is dismissed.

9. An oral application for leave to appeal to the Supreme Court is made by Sri Sarathy. We do not consider any question of law of general importance which requires to be considered by the Supreme Court is involved in this appeal. The application is rejected.


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