ASHOK KUMAR AGARWAL Vs. COLLECTOR OF C EX

JUDGEMENT

(1.) THESE applications arise out of a common order dated 31-8-87, passed by the Collector of Central Excise, Bangalore, by which he had ordered absolute confiscation of 2,226 gms. of primary gold seized from the possession of Ashok Kumar Agarwal, son of Bhaiyyalal and Ashok Kumar Agarwal son of Moolchand, valued at Rs. 6,32,600 under Section 71(1) of the Gold (Control) Act, 1968 and also imposing a penalty of Rs. 25,000 on each of them under Section 74 of the Gold (Control) Act, besides imposing a penalty of Rs.50,000/- on appellants Mahendra Kumar Agarwal and Surendra Prasad Agar-wal. Since the issue involved in the appeals lies in a short compass and are to be taken up for disposal today itself waiver of pre-deposit of the penalty in all these cases prayed for is allowed and the appeals themselves are taken up for disposal today.

(2.) A.Nos. G/183,184,185,186/881 - The facts in brief are on 18-5-84 the Central Excise officers of Headquarters Gold Cell, Bangalore, on receipt of information that the Directorate of Revenue Intelligence officers had intercepted 4 persons carrying gold at Hotel Sharada in Bangalore, visited the Hotel and found the appellants Ashok Kumar Agarwal son of Bhaiyyalal and Ashok Kumar Agarwal son of Moolchand alongwith Mahendra Kumar Agarwal in the Hotel. On examination of the baggage of Ashok Kumar son of Bhaiyyalal it was found that there was a card board carton which was containing eatable and underneath eatables there was a packet containing three pieces of gold each weighing 298 gms., 249 gms. and 211 gms. of 24 ct. purity. On further examination of the bag, another heavy paper roll was found which was containing 40 thin roun rods of gold totally weighing 1,468 gms. of 24 ct. purity. Thereafter the person of appellant Ashok Kumar Agarwal son of Moolchand was searched and it was found that he had concealed two paper packets in his shoes containing gold pieces totally weighing 937 gms. of 24 ct. purity. The gold totally weighing 3,163 gms. valued at Rs. 632,600/- was seized for action under the Gold (Control) Act. Ashok Kumar Agarwal son of Bhaiyyalal gave a statement on 19-5-1984 stating the he was working with his brother-in-law appellant Surendra Prasad Agarwal of Allahabad for the past 8 years and that on 16-5-84 appellant Mahendra Kumar Agarwal gave him 3 pieces of gold and 40 rods telling him to hide them and carry them to Bangalore along with him. He said that he kept the three pieces of gold in a card board box along with eatables to avoid its detection and the gold rods in his rexin bag as directed by appellant Mahendra Kumar Agarwal. Ashok Kumar Agarwal son of Moolchand also gave a statement on 19-5-1984 stating that he went to Allahabad on 12-5-1984 on the promise of appellant Surendra Prasad Agarwal father of appellant Mahendra Kumar Agarwal, to secure him a job; that on 16-5-1984 he was told by Surendra Prasad Agarwal to accompany Mahendra Kumar Agarwal to Bangalore and that Mahendra Kumar Agarwal gave him 4 pieces of gold with instructions to conceal and carry the same to Bangalore along with him and also stated that after selling the same he would be given some money out of the proceeds to start some business. Appellant Mahendra Kumar said in a statement on 19-5-1984 that his father Surendra Prasad had given him the gold on 16-5-1984 in his house with instruction to deliver it to one Sesh-mul of Bangalore and to get it sold through him. He accordingly left for Bangalore along with the other appellants the two Ashok Kumar Agarwals to whom he had given the gold for carrying it to Bangalore. Appellant Surendra Prasad Agarwal in his statement on 29-5-1984 denied any knowledge of the gold seized at Bangalore and said it did not belong to him. He also said that his son appellant Mahendra Kumar Agarwal was not in the house since 15-5-84 and that he had not met him. It is in these circumstances, following further investigations proceedings were instituted against the appellants which resulted in an adjudication order of the Collector dated 31-12-85 confiscating the gold and imposing various penalties on the appellants. An appeal was filed against the Collector's order before the CEGAT which by its order No. 603 to 606/86, dated 1.8.86 remanded the case of the appellants to the Collector on the ground that the appellants should be afforded an opportunity to participate in the personal hearing which opportunity could not be afforded to them during the adjudication proceedings. Therefore, the Collector took up the case in terms of the direction of the Tribunal and passed the present impugned order against which the appeals have now been preferred.

(3.) AS regards appellant Mahendra Kumar Agarwal, the learned Counsel contended that this appellant was not present in the Hotel Sharada where the gold was recovered from the other two appellants AShok Kumars Agarwal. No gold had been recovered from him. The statement obtained from this appellant was also not voluntary statement but one extracted under duress from which he also retracted and that, therefore, no reliance can be placed on such a statement to penalise him.