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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, NEW DELHI
Harish Chander, D.C. Mandal, JJ.
Dalip Singh -Appellant
Versus
Collector of Customs and Central Excise, Chandigarh -Respondent
Order Nos. REF/26 to 27/86-NRB, 26 of 1986, 27 of 1986
Decided On : 03-07-1986
D.C. Mandal, Member (T)
1. By the order No. A-7 and 8/86-NRB dated 9.1.1986, this Tribunal upheld the orders of confiscation of primary gold weighing 1.600 Kgs., 150 wrist watches and silver weighing 18.900 Kgs. under Section 111(d) and 113 respectively of the Customs Act, 1962 passed by the Collector of Customs and Central Excise, Chandigarh, under his order-in-original No. 8/Customs/83 dated 2.7.83 and reduced the penalty of Rs. 3 lakhs imposed on the applicant by the said Collector under Section 112 of the Customs Act to Rs. 2 lakhs. By the order No. A-7 and 8/86-NRB dated 9.1.1986, this Tribunal also upheld the order of confiscation of primary gold weighing 1.600 Kgs. under Section 71 of the Gold (Control) Act, 1968 and penalty of Rs. 1 lakh imposed on the applicant under Section 74 of the Gold (Control) Act passed by the Collector of Customs and Central Excise, Chandigarh. These reference applications are directed against the aforesaid order of this Tribunal. In these applications, filed under Section 130(1) of the Customs Act, 1962 and Section 82B of the Gold (Control) Act, 1968, the applicant has listed, in para 3 of the applications, the following points, which, according to him, are points of law and has prayed that reference be made to High Court for their determination:-
(a) Points raised in para 3 of the Reference Application No. C/Ref. 14/86-NRB.
"(I) Whether the proceedings initiated by the Collector of Customs are void ab initio and nullity in law because the statement allegedly recorded under Section 108 of the Customs Act are not admissible in law, because First Information Report had been registered with regard to the alleged incident being FIR No. 352 dated 14th December, 1980 under Section 308 S. Act, 25 Arms Act, 9.1.78 Opium Act, 61.1.14 Excise 'Act by Police Station 'A1 Division Amritsar. In view of the fact that FIR had been registered, the investigation/enquiry made by the customs Authorities are hit under Section 25 of the Evidence Act and Article 20(3) of the Constitution of India. If these statements are excluded, there is absolutely no material to connect the petitioner with the alleged incident.
(II) That on admitted facts the seizure was made by the police and not under the provisions of the Customs Act. The provisions' of Section 123 of the Customs Act would not apply and the Department has failed to prove that this was smuggled gold. The petitioner has denied his connection with the alleged contraband.
(III) Whether on the admitted facts the Department has been able to prove that there was conscious and exclusive possession of the gold recovered by the police and the petitioner had knowledge and reason to believe that the same was liable to confiscation as required under Section 112(b) of Customs Act.
(IV) Whether on the facts and the circumstances of the case the petitioner was entitled to the benefit of doubt, when on the same incident the learned Collector had given the benefit of doubt to the other co-noticees; Shri Harmesh Kumar and Sardar Mangal Singh.
(V) Whether the Collector could ignore the statements recorded under Section 108 of the Customs Act, which was relied upon in the show cause notice by the Department and could a new, case be made out by the Collector which was not even in the show cause notice.
(VI) Whether there was legal evidence to connect the petitioner with the alleged contraband recovered by the police."
(b) Points raised in paragraph 3 of the Reference Application No. G./Ref. 15/86-NRB.
"(I) Whether the proceedings initiated under Gold (Control) Act are void ab initio and nullity in law because there was no statement were recorded under Section 63/64 of the Gold (Control) Act, and the statement made under Section 108 of the Customs Act are not admissible in law, because First Information Report had been registered with regard to the alleged incident being FIR No. 352 dated 14th December, 1980 under Section 308 S. Act, 23 Arms Act, 9.1.78 Opium Act, 61.1.14 Excise Act by
