M. Gouri Shankar Murthy, Member (J)

1. In this application under Section 82B of the Gold (Control) Act, 1968, read with Section 821 thereof, (hereinafter referred to as the Act), the Applicant requires the Tribunal to state a case to the Hon'ble High Court of Judicature at Allahabad, in regard to the following questions, said to be questions of law arising out of the Tribunal's orders dated 29-7-83, dismissing the Appeal filed by the Applicant originally before the Gold Control Administrator, [in terms of Sec. 80 of the Act, as it stood at the material time] but transferred to the Tribunal and heard as an Appeal, pursuant to Section 82K of the said Act:-

"(i) Whether the Department had established by any legal evidence on record or proved that the new gold ornaments weighing 1029,400 grams in fact belong to the applicant firm and possessed by the applicant in contravention of the Gold (Control) Act, 1968 and Rules made thereunder ;

(ii) Whether the Department had established any conscious possession of new gold ornaments weighing 1029.400 grams by the applicant firm especially when the learned Respondent himself has exonerated the partner of the firm of the charge of contravention of the provisions of the Gold (Control) Act, 1968 and the Rules made thereunder;

(iii) Whether the whole proceedings are vitiated inasmuch as no mandatory show cause notices were issued to the respected owners of the gold ornaments under Section 79 of the Gold (Control) Act, 1968;

(iv) Whether the mandatory provisions of the Proviso Clause Subsection (1) of Section 71 of the Gold Control Act, 1968 has been violated;

(v) Whether the claims of the customers of their respective gold ornaments is negative in any way by the Department;

(vi) Whether the claim of the respective customers their affidavits claiming the ownership of the goods, the affidavits of the goldsmiths supported by the entries in their statutory records and confirmed on enquiries made by the Department, the affidavit of Shri Inder Gopal has no evidentiary value in the eyes of law;

(vii) Whether the statement of Shri Krishan Gopal dated 29-3-1980 duly corrected soon thereafter within a couple of days could form the Sound basis for confiscation of the ornaments, with an option to redeem the same on a huge fine of Rs. 50,000 and also imposition of personal penalty of Rs. 10,000 on the firm;

(viii) Whether there was any reasonable belief in mind of the seizing officer at the time of the seizure of the goods;

(ix) Whether there is any mis-appreciation of evidence on record in the order passed by the Appellate Tribunal."

2. The facts, in brief, are-

(a) the Applicant is a partnership firm of licensed Gold Dealers under the provisions of the Act in Badaun. The partners are Shri Gauri Shankar and his son, Shri Krishan Gopal;

(b) a search of the shop of the Applicant was conducted in the afternoon of 29th March, 1980;

(c) a secret iron safe installed in the room adjacent to and connected with the shop was discovered and got opened; 275 pieces of new Gold ornaments weighing 1092.400 grams valued at Rs. 1,06,640, apart from some 20.900 grams old gold, valued at Rs. 2,400 were found and seized as gold unaccounted in the prescribed records, in terms of Sec. 66 of the Act, under a reasonable belief that the provisions of the said Act were contravened in respect of them;

(d) both the partners of the Applicant firm were present at the time of search and seizure. Shri Krishan Gopal had admitted that the seized gold ornaments belonged to the Applicant and the same were prepared by goldsmiths.[sic] Statement dated 29-3-1980]. He further admitted that they were not duly entered in the records. He stated that his brother, Inder Gopal had received the ornaments and he was then out of station. As regards 20,900 grams of gold, he pleaded that the same belonged to Jagdish Chand, his relative who had left it in the shop;

(e) in adjudication, the Collector of Central Excise, Kanpur held that-