Decided on January 23,1986



- (1.)CONSEQUENT to the directions contained in R.C.P. No. 3/85, dated 16.9.1985 of the High Court of Judicature at Madras, on a petition filed by the applicant under Section 82(B)(3) of the Gold (Control) Act, 1968, we hereby state the case and refer the questions of law as contained in the above direction.
(2.)The facts of the case found by the Tribunal in paragraph 4 of the order are :-
This is one of the four cases of seizure of what was determined as primary gold by the Collector of Central Excise, Guntur, from the appellant herein at about 10.00 P.M. on 29.8.1980 near the Godavari Railway Station at Rajahmundry. The quantity of gold seized was 1446 gms. and was determined to be of 23 ct. purity valued at Rs. l,44,600/- in the shape of a belt (weighing 54l gms) and 37 circlets (weighing 905 gms). The appellant claimed that the seized items were finished and old ornaments which were in use of the members of his joint family for over 20 years. The Collector examined the seized items and found as follows :-

"During the personal hearing the items were examined in the presence of the party and the advocate. The party was asked to wear the items in the form of waist belt. In spite of best efforts, he could not wear it on his waist. On examination of the item, it was found to be rather new and also not in finished form inasmuch as buttons and holes had not been properly aligned. The item was also malleable and therefore not fit for use. For an ornament like the waist belt, it has to be strong enough to resist the pressure when used tightly at the waist. On examination of the item it did not give indication that it was in use for the past 20 years. In fact there were no signs of use at all. Under these circumstances, the item in question (waist belt) is describable more as a piece of primary gold rather than an ornament in the form of waist belt, in finished form.

As ragards the 37 items, they were also found to be so malleable as not to permit their use as bangles without their losing shape. They were found to lose shape even while being attempted 'to be worn on hand. Items of such purity are so easily malleable. The items were also not found to be in finished form with a clear design. Also they cannot be held to be ornaments having regard to the workmanship. Under these circumstances, the 37 items in question are correctly to be deemed as pieces of primary gold."

He found that the goods constituted primary gold and ordered their confiscation under Section 7(1) of the Act for violation of Section 8(1)(i) thereof. He also imposed a penalty of Rs. 20,000/- on the appellant under Section 7k of the Act.

The applicant's appeal under Section 80 to the Gold Control Administrator against the above order has been transferred to this Tribunal under Section 82K of the Act.

(3.)AFTER hearing both sides, the Tribunal dismissed the appeal for the reasons recorded in paragraphs 6 and 7 of its order reproduced below :-

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