Gopi Nath, J. - (1.) THIS Is a special appeal against the judgment of a learn ed Single Judge dated August 10. 1971, allowing a writ petition filed by the petitioner-respondent The Collector Cen tral Excise and others, the opposite par ties in the writ petition are the appel lants and Lala Kashi Nath Seth, Jewel lers is the petitioner- respondent. The writ petition challenged an order of sei zure made by the Superintendent, Cen tral Excise, Lucknow and other officers of the Department, The officers seized 2583 pieces of ornaments weighing 22151.370 grams of gold which was the entire stock in trade with the petitioner-respondent on 27-4-1971. This was chal lenged on the ground that it was illegal and arbitrary and was meant to harass the petitioner-respondent.
(2.) THE petitioner-respondent Is a licensed dealer in gold, gold ornaments and articles of gold. It is authorised to acquire, possess and dispose of gold and gold ornaments and other articles of gold in accordance with the provi sions of the Gold (Control) Act. Here in after referred to as the "Act". The Assistant Collector. Cen tral Excise received information that the petitioner was dealing in foreign gold and that it had in its possession such gold. A raiding party, consisting of the Superintendeni Central Excise, Lucknow, and a few other officers con ducted a search of the petitioner-respon dent's business premises at 20, Jhande-wala Park. Lucknow, on 27-4-1971. The Officers found that Forms Nos. G. S. 10, 11 and 12 were not maintained by the respondent from 19th to 26th April, 1971. They found that Form No. G. S. 10 was maintained upto the 18th April, 1971; Form No. G. S. 11 was main tained upto the 17th of April. 1971 and Form No. G. S. 12 was maintained up to 1st April, 1971 in respect of 71 items, upto llth of April, in respect of two items, upto 17th of April, in respect of two items and upto the 18th of April, 1971 in respect of four items. It might be observed that Form No. G. S. 11 is not material for this case: The officers thereupon seized the entire stock-in-trade which consisted of 2583 pieces of ornaments as mentioned above. Accord ing to the petitioner-respondent the Munim of the respondent Firm was ill and the period in dispute being a mar riage season, and there being rush of business, Forms G. S. 10, 11 and 12 could not be posted although the cor responding vouchers of receipt and issue during this period were available and the Department in fact seized the quan tity of gold mentioned above on the basis of the vouchers for the period 19th to 26th April, 1971.
(3.) THE case of the Department was that the Department received in formation that the petitioner- respondent was dealing in smuggled gold, a raid was accordingly conducted and it was found that Forms G. S. 10. 11 and 12 were not posted from 19th to 26th April, 1971; that on the basis of the vouchers the Department found that a certain quantity of gold consisting of ornaments was received and issued during this period by the respondent; Forms G. S. 10 and 12 having not been posted for the period, an equal number of orna ments carrying the same weight, though not the same as were actually received were seized by it. This position was clarified by the Department by means of a supplementary counter- affidavit of Sri Gyan Charan Misra filed on 30-6-1971. Paragraph 9 of that affidavit stated that articles received between 18-4-1971 to 26-4-1971, not being cap able of identification, an equivalent num ber of unaccounted for ornaments were seized. It is to be noticed that the De partment has not explained as to what it meant by unaccounted for ornaments. The vouchers being available in respect of the entire stock seized and there being no case of discovery of any excess gold in stock nor there being any alle gation that the stock seized was not re ferable to Forms G. S. 10 and 12 al ready in existence the allegation about the ornaments being unaccounted for remains vague. The Department's case on its ultimate analysis seems to be that the petitioner-respondent received ornaments of gold during 19th to 26th April, 1971, and the total weight there of was gathered from the vouchers for that period. Those ornaments could not be seized for lack of identification but since in the opinion of the Department the petitioner had contravened the pro visions of Section 55 of the Act by not filling Forms G. S. 10 and 12 from 19th to 26th April. 1971 an equivalent num ber of other ornaments carrying the same weight were liable to seizure and were accordingly seized. The orna ments, so seized, might at the time of seizure, have been accounted for or might not have been accounted for; but according to the Department they at tracted the liability of seizure because an equal quantity of gold actually liable for seizure was not identifiable in the stock. It is relevant to notice the pro ceedings of the writ petition at this stage.;