Arijit Pasayat, J. - (1.) IN these appeals the Commissioner of Central Excise, Jaipur (hereinafter referred to as the "Commissioner") calls in question legality of the judgment passed by a Division Bench of the Rajasthan High Court at Jodhpur dealing with an application under Section 130 of the Customs Act, 1962 (in short the "Act"). The Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (in short the "Tribunal'") held that the proceedings initiated, by the Customs authorities against the Respondent (hereinafter referred to as the "assessee") were without legal sanction. An application was filed as noted above under Section 130 of the Act proposing the following questions for determination by the High Court: (i) "Whether the Silver bearing foreign marking can be released on the ground that these were not smuggled into country when the same had not been disclosed in their Wealth Tax return filed in the year 1958 and seized under Section 110 of the Customs Act, 1962 in contravention of restrictions imposed vide Notification No. 12(ii) F/1/48, dated 25.8.1948 as amended issued under Section (1) of FERA, 1947 read with Section 11 of the Customs Act. 1962. (ii) "When it has not been fully proved/established that silver in questions were brought into country before the issue of Notification No. 12(11) F/1/48 dated 25.8.1948 issued under Section 8(1) of FERA, 1947 and the goods before foreign mark; can the goods be released to the party on the basis that onus of proof was on the department that these were brought, smuggled without payment of duty into the country, when the burden of proof has not been shifted to the department. The High Court found that the questions posed were really based on finding of facts giving rise to no question of law.
(2.) THE basic issue which arose revolved around the question whether 85 silver bars which had foreign markings thereon were smuggled goods in view of the Notification No. 12(11) F 1/48, dated 25th August, 1948. Said notification related to restrictions on import of gold and silver. It provided that silver bullion or silver sheets or plates cannot be brought or sent to India from outside India except with the general or special permission of the Reserve Bank. This articles in question were seized during search and seizure which was conducted in the months of July and August, 1965. There appears to be lot of controversy as to the years in which these articles came to possession of the Assessee. According to the Appellant it was after the date of notification initially proceedings were initiated by the Collector, Chittorgarh under the Treasure and Trove Act, 1878 (hereinafter referred to as "Treasure Act") treating that the articles were antique articles. He held, that on the date of find, the articles were more than 100 years old and were liable to be forfeited. Though the Collector, Chittorgarh found these articles to be antique articles, the Board of Revenue, Ajmer found that they were hidden between 30 to 50 years before discovery and held that since the discovery was on the basis of the information it was not a find or a property bona vacantia. The finding was challenged by State and its functionaries by filing a writ petition which was dismissed. A special leave petition was filed before this Court which was also dismissed. After the search and seizure, in proceedings before the Wealth Tax Officer, B -Ward, Circle -I, "Indore (in short the "WTO") the articles were claimed to have come to possession of the concerned persons much before the date of notification. The WTO considered the question whether the acquisition was in the year they were found or related to an earlier period. Taking, note of several factor it was concluded that the articles had come into possession of the Assessee long back. In response to the show cause notice issued on 2.21996 the Assessee took the stand that the Notification No. 12(11)F -1/40, dated 25.8.1948 issued under Section 8(1) of the erstwhile Foreign Exchange and Regulation Act, 1947 (in short the "Act") read with Section 11 of the Act had no application. The Commissioner held that the various circumstances highlighted by the Assessee were not sufficient to discharge the burden that lay on him to rule out the application of the notification in question. The Commissioner directed confiscation of the articles in question. The Assessee filed appeal before the CEGAT which held that though Section 123 of the Act had no application in principle, yet the Assessee had discharged the burden which lay on him to prove that the articles had come into his possession much before the notified date. The revenue filed application for reference for adjudication of the formulated questions. As noted above, the High Court held that as no question of law was involved the application was to be rejected.
(3.) IN support of the appeals Mr. A.K. Ganguli, learned Senior Counsel submitted that the approach of the CEGAT was erroneous. Even if the applicability of Section 123 of the Act is not there, it was within the special knowledge of the Assessee as to when the articles came to his possession and since no definite material was produced, the Commissioner's view should not have been interfered with by the CEGAT. He pointed out that though great stress was laid on the order of the WTO that related to an entirely different issue and had no direct bearing of the issue regarding the period of possession. In response Mr. S.S. Ray, learned Senior Counsel submitted that the findings recorded by the CEGAT are findings of fact. The High Court was therefore justified in holding that no question of law was involved.;