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A. Gangadhar S.A. Vs. Government of India and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 2161 of 1979
Judge
Reported in1983(14)ELT2211(AP)
ActsGold (Control) Act, 1968 - Sections 2, 8, 8(1), 10 and 74
AppellantA. Gangadhar S.A.
RespondentGovernment of India and ors.
Appellant AdvocateB.K. Seshu, Adv.
Respondent AdvocateK. Subrahmanya Reddy, Standing Counsel, for the Central Government
Excerpt:
excise - seizure - sections 2, 8, 8 (1), 10 and 74 of gold (control) act, 1968 - officers seized gold ornaments as were in contravention of provisions of act - gold seized included primary gold on security of which petitioner had advanced loan - confiscated pieces of gold constituted primary gold - authorities concluded that seized material was in appearance of crude gold ornaments in semi-finished conditions - held, there was contravention of sections 8 and 10 of act as confiscated gold pieces constituted primary gold. - - he submits that the evidence adduced by the parties as well as the opinion of the trade panel go to show that the gold pieces directed to be confiscated are ornaments which are normally used according to the custom prevailing among the residents of armoor and,..........gangadhara sa at armoor in nizamabad district and seized 713.500 grams of primary gold and gold ornaments for contravention of provisions of gold (control) act, 1968. it appears that the gold seized included primary gold on the security of which the petitioner had advanced loans to sarvasri yellaturi chinnodu, mittapalli chinnolla muthanna, gididi mallaiah and baddam mallubhai. a show cause notice dated 15-8-1975 was issued to the petitioner and the persons who has pledged the gold with the petitioner alleging that they had contravened the provisions of sections 8(1) and 10(a) of the said act and that, therefore, seized gold was liable to be confiscated. 3. the petitioner herein sent a reply on 25-9-1975 stating that he was doing business as a money lender at armoor advancing.....
Judgment:

Ramchandra Rao, J.

1. The petitioner herein A. Gangadhar Sa has filed this Writ Petition challenging the order of the Government of India, Ministry of Finance in Order No. 567/78, dt. 29/12/1978 dismissing the revision petition filed by him and three others against the order of the Collector of the Central Excise, Hyderabad in Order No. II/3/132/76-Gold, dt. 28-1-1977 confirming the order of the Deputy Collector, Central Excise, Hyderabad dated 16-8-1976 whereunder he directed the confiscation of the three items of gold. The Government of India however set aside the penalty imposed on the revision petitioners and gave option to them to redeem the gold on payment of a fine of Rs. 18,000/-.

2. The relevant facts are as follows :-

On 28-5-1975, the officers of the Central Excise, Headquarters, Gold Cell, Hyderabad visited the money lending shop of the writ petitioner Aljapuram Gangadhara Sa at Armoor in Nizamabad District and seized 713.500 grams of primary gold and gold ornaments for contravention of provisions of Gold (Control) Act, 1968. It appears that the gold seized included primary gold on the security of which the petitioner had advanced loans to Sarvasri Yellaturi Chinnodu, Mittapalli Chinnolla Muthanna, Gididi Mallaiah and Baddam Mallubhai. A show cause notice dated 15-8-1975 was issued to the petitioner and the persons who has pledged the gold with the petitioner alleging that they had contravened the provisions of Sections 8(1) and 10(a) of the said Act and that, therefore, seized gold was liable to be confiscated.

3. The petitioner herein sent a reply on 25-9-1975 stating that he was doing business as a money lender at Armoor advancing money on pledge of gold and silver ornaments and that he was submitting regular returns to the Gold Control Authorities. With regard to seized ornaments he stated that the 'kadiams' which bore identification chits of the owners were ornaments which are worn by stretching them and, therefore, the ends of the said ornaments would never be joined, and that such 'kadiams' would be presented at the time of the marriage, to girls who are usually married at very young age and that they would be worn when they grow up. The trade panel constituted for inspecting the said seized ornaments examined the ornaments and opined that they were ornaments and that, therefore, there was no contravention of the provisions of Sections 8 and 10 of the said Act. The petitioner and the other owners were given a personal hearing and they were represented by a consultant. The Deputy Collector on a consideration of the evidence addused before him and the opinion of the trade panel came to the conclusion that there was no reason to doubt the bona fides of the petitioner who advanced the loans to the person on the security of the gold offered by them and that it could not be said that the petitioner had acquired the gold for his own use or for putting in trade circulation. He then considered the question whether the various items of gold seized were gold ornaments of primary gold. In the light of the evidence produced before him he came to the conclusion that items No. 1(a), 3 and 4(a) of the items in the list of the seized articles did not have the appearance of the finished ornaments, but their ends showed signs of cutting and that in fact they presented the appearance of crude gold ornaments in semi-finished condition, notwithstanding their six sided shape. On those findings, the Deputy Collector ordered the confiscation of the four items of gold listed at Sl. Nos. 1(a), 3 and 4(a) having a net weight of 231.500 grams, 57,800 grams and 99.800 grams respectively. He also imposed under S. 74 of the said Act penalties of Rs. 500/- on the petitioner and Rs. 300/- Rs. 100/- and Rs. 200/- on the owners of the said items which were ordered to be confiscated.

4. Against the said order the petitioner and the three aggrieved owners preferred appeals before the Collector of the Central Excise, who examined the confiscated gold pieces, and considered the other evidence adduced by the parties, and came to the conclusion that the gold articles confiscated were not 'fit to be put on the person of children of one or two years. They cannot be considered to be pieces of gold, the type of which are commonly used as ornaments in any State or Union Territory'. Earlier he also found, on the basis of the weights of the gold pieces seized, that the said items were heavy having rough edges. On the said material he came to the conclusion that the confiscated pieces of gold constitute primary gold and accordingly confirmed the order of the Deputy Collector.

5. The petitioner and three aggrieved owners preferred revision applications to the Government of India and the Government of India by the impugned order dated 29-12-1978, confirmed the order of the Collector, Central Excise. However, having regard to the facts and circumstances of the case, the Government of India set aside the penalty imposed on the revision applicants, and gave them option to redeem the gold on payment of a fine of Rs. 18,000/- subject to the provisions of the Gold (Control) Act, 1968. Against the said order the writ petitioner alone has file this writ petition. The owners of the confiscated gold pieces did not challenge the orders of the Government of India.

6. On behalf of the petitioner, Sri B. K. Seshu, the learned counsel contended that the pieces of gold seized did not constitute primary gold, but are gold ornaments and, therefore, there was no contravention of the provisions of Sections 8 and 10 of the said Act. He submits that the evidence adduced by the parties as well as the opinion of the trade panel go to show that the gold pieces directed to be confiscated are ornaments which are normally used according to the custom prevailing among the residents of Armoor and, therefore, the authorities under the Gold (Control) Act committed an error in coming to the conclusion that the pieces of gold directed to be confiscated constitute primary gold and not ornaments. The word 'ornament' is defined in Section 2(p) of the Gold (Control) Act, and the explanation thereto reads as follows :-

'For the purpose of this Act, nothing made of gold which resembles an ornament, shall be deemed to be an ornament unless the thing (having regard to its purity, size, weight, description or workmanship) is such as is commonly used as ornament in any State or Union Territory.'

In the instant case the authorities found that the seized gold pieces do resemble an ornament. But under the explanation it must be shown that the gold article having regard to its purity, size, weight, description or workmanship is such as is commonly used as ornament in any State or Union Territory. The authorities found having regard to the factors mentioned above that they have appearance of crude gold ornaments in semi-finished condition and that the ends show signs of cutting and that they did not have the appearance of finished ornaments. In particular, the Appellate authority, the Collector, found, after examining the seized articles, that they are heavy having rough edges and not fit to be put on children of one or two years, and that they could not be considered to be pieces of gold, the type of which were commonly used as ornaments in any State. The Collector further held that the confiscated pieces of gold constitute primary gold. These findings arrived at by the authorities under the Act were accepted and confirmed by the Government of India. Further the said findings of the competent authority are based on relevant statutory factor, and on a consideration of the evidence adduced by the parties. The findings so reached cannot be interfered with, unless they are shown to be vitiated by any material illegality or patent or palpable error, or unless they are based on no evidence. In the instant case it has not been established, before us that the findings recorded by the compartment authorities under the Act are vitiated on any of the grounds mentioned above. In the circumstances we are unable to agree with the contention of the learned counsel for the petitioner, that the findings arrived at by the authorities below that the confiscated gold pieces constitute primary gold is illegal or unsustainable. It has not been disputed that, when once it is found that the confiscated gold pieces constitute primary gold, there would be contravention of Section 8 and 10 of the said Act. If so, it follows that the order directing confiscation of the gold pieces giving an option to the petitioner and others to redeem the articles on payment of fine or Rs. 18,000/- is legal, proper and valid and the same cannot be interfered with.

7. For all the foregoing reasons, the writ petition fails and the same is dismissed. There shall be no order as to costs.


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