V.T. Raghavachari, Member (J)

1. These two appeals, with the cross objections above noted, were first heard by Shri D.C. Mandal, Member. Under order dated 3-12-85 he had directed that the papers be placed before the President of this Tribunal to constitute a larger Bench for deciding the matter in issue since he observed that there was a conflict between the decisions of the various High Courts and further there was an earlier order of this Tribunal with the conclusions of which he was not inclined to agree. Subsequently, under orders of the President, the two appeals with the connected cross objections were heard by a Bench consisting of S/Shri M. Santhanam and D.C. Mandal, Members. Under order dated 13-2-86 they formulated the point of difference between them as "whether the proceedings under Section 110 and 124 of the Customs Act, 1962 and the corresponding provisions under Sections 66 and 78 of the Gold (Control) Act, 1968 are independent or inter-dependent" Under the said order they had directed that the papers be placed before the President of the Tribunal for such action as deemed fit and necessary under Section 129C(5) of the Customs Act and Section 81D of the Gold (Control) Act, 1968. Thereafter the President had directed that in accordance with the above provisions the matter be heard by the present Bench. It is in these circumstances that we have heard submissions of both sides on the point of difference between the two Members of the Bench which passed the order dated 13-2-1986.

2. We have heard Smt. Archana Wadhawa, Advocate for the appellants and Smt. Nisha Chaturvedi for the Department.

3. The facts of the case are set forth in detail in the order of Shri Mandal dated 3-12-85. He has further mentioned therein that the learned Advocate for the appellants submitted that she had no arguments to submit on the factual question of the recovery of the gold from the appellants. Her submissions were entirely on points of law and specifically related to the question whether the appellant was entitled to return of the gold seized, the contention being that in so far as no proper notice had been given within 6 months from the date of seizure, the extension of -time for issue of notice having been granted without hearing the appellant also, the gold was liable to be returned to the person from whom it was seized in terms of Section 110 of the Customs Act and the corresponding provisions in the Gold (Control) Act and hence the subsequent proceedings resulting in the order of the Collector directing confiscation of the goods were void and the appellant was therefore entitled to return of the gold. As earlier mentioned, it was this question of the validity of the proceedings for confiscation, in spite of notice not having been issued within 6 months from the date of seizure, that has been referred to us for decision in view of the difference in opinion between the two members who heard the appeal,

4. At the commencement of her submissions before us Smt. Wadhawa wanted to raise a preliminary contention that it was her submission before the Bench consisting of S/Shri M. Santhanam and D.C. Mandal that they were not entitled to hear submissions and that in view of the said submission we would also not be entitled to hear submissions of. pass orders. She stated that her contention before the earlier Bench was that Shri Mandal who initially heard the matter was bound to have followed the Delhi High Court judgment reported in 1983 ELT 1715 (Shanti Lal Mehta v. Union of India) and the decision of this Tribunal in Vishwanath Pandey v. Collector of Customs (1984 Vol. 16 ELT 404) and the reference by him to the President for constituting a larger bench was itself incompetent. When it was pointed out to her that there is no reference in the order of the Bench dated 13-2-86 about any such submission haying been raised by her before the said Bench, she stated that she did raise the said submission but unfortunately the Bench had failed to a