K. Gopal Hegde, Member (J)

1. This appeal arises out of and is directed against Order-in-Original bearing F.No. XVII(GC)8-19/81/396, dated 3-2-1983 passed by the Collector of Customs (Preventive), Bombay. The subject of challenge of this appeal is the order of confiscation of 936.150 gms. of gold and the fine of Rs. 25,000/- levied in lieu of confiscation as well as the penalty of Rs. 2,500/- imposed on the appellant.

2. During the hearing of this appeal, Shri Wazifdar made the following submissions. Firstly, he urged that the Department's case that the appellant was intercepted ear Stock Exchange Building with the seized gold and account books and thereafter he was brought to the Gold Control Office is totally false. Elaborating his contentions, Shri Wazifdar referred to the statement of the appellant recorded immediately after the seizure. In the statement, among other things, the appellant has stated :-

"Today on 28-4-81 you and your officers came to my shop and held me and brought me to the office and in the presence of two Panchas and opened my bag and leather bag of maroon coloured...."

He then referred to the letter that the appellant had written to the Superintendent on 1-5-81. In this letter, among other things, the appellant stated : "I was forcibly brought down stairs with gold ornaments and cash in one bag, and in another thelli (bag of cloth)my books of accounts. After bringing me down stairs I was made to sit in one oil shop with two officers and one officer went to fetch taxi".

Shri Wazifdar then relied on the affidavit of the shopkeeper in whose shop the appellant was made to sit. The shopkeeper Kesavbhai Daudbhai doing business in oil and flour in his statement stated that on 28th April, 1981 at about 10.30 a.m. a person who was standing near a shop asked his permission to sit in the shop. Since he told that he was a Gold Control Officer he was allowed to sit. After about an hour, 3 other persons brought the appellant and he was also made to sit in the shop. The appellant was protesting as to why he was taken from his shop with his legal and lawful remarks. The persons who brought him told the appellant that they were taking him to the Gold Control Office as per the order of higher officers.

3. Shri Wazifdar contended if the appellant was intercepted in the busy locality like Kalbadevi, several persons would have seen he being apprehended and the Gold Control Officers would have made atleast two persons from that locality as witnesses but then none were picked up from that locality. In this connection, Shri Wazifdar referred to Section 69 of the Gold (Control) Act which made applicable to the provisions of search seizure of the Criminal Procedure Code to the Gold Control proceedings. Shri Wazifdar further submitted even though the letter dated 1-5-81 was sent by registered post with acknowledgement due and acknowledged by the Department the same was not referred to in the show cause notice nor produced before the adjudicating authority. The file itself did not contain this letter. Thus the Department was guilty of suppression of material facts. Shri Wazifdar urged that the learned Collector committed an error in relying on the statement contained in the panchnama which is not admissible in evidence. The learned Collector further committed a grave legal error in not considering the affidavit filed by the shopkeeper and rejecting that affidavit as an after thought. He, therefore, prayed that the Department's case that the appellant was apprehended near Stock Exchange Building at Kalbadevi was a got up case and the same should be rejected.

4. As regards the charge of not maintaining account, Shri Wazifdar admitted that in respect of 3 transactions there was violation of Section 55. He submitted 89.800 gms. purchased 24-4-81 was not entered in G.S. 11 register. Similarly sale of 221.650 gms. made on 25-4-81 was also not entered in the statutory register. Further, purchase of standard gold bar weighing 200 gms. on th