Sri A. Trinath Rao vs Commr. Of Customs,Central Excise & ...

(Arising out of the Order-in-Original No.CCE/GOLD/BBSR-I/21/2014 dated-13/01/2014 passed by the Commissioner of Central Excise, Customs & Service Tax, BBSR-I) For approval and signature of: SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER

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1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?

3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?

Sri A. Trinath Rao APPELLANT(S) VERSUS Commr. of Customs,Central Excise & Service Tax-BBSR-I

RESPONDENT(S)

APPEARANCE

Sri Subrat Satpathy, Advocate FOR APPELLANT(S) Sri S.K. Naskar, A.C. (A.R) FOR THE RESPONDENT(S)

CORAM: SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER

DATE OF HEARING : 18/09/2015 Date of Pronouncement :

ORDER NO : FO/A/75554/15 Per SHRI H.K. THAKUR

This appeal has been filed by appellant Shri A. Trinath Rao, son of Late A. Raja Rao, of Behrampur, Ganjam; against Order-in-Original No. CCC/GOLD/BBSR-I/21/2014 dated 13/1/2004 passed by Commissioner of Central Excise, Customs & Service Tax, Bhubaneswar. Under th is Order-in-Original dated 13/1/2004, Adjudicating authority had held that Shri A. Trinath Rao , legal heir of Late Shri A. Raja Rao has no merit to claim the seized gold.

2. Shri Subrat Satpathy (Advocate) appearing on behalf of the appellant argued that in the year 1975, father of the present appellant Shri A. Raja Rao was preparing himself for the marriage of his third daughter to be held on 23/3/1975 and wanted to remake certain new gold ornaments from old gold ornaments lying with him. That for this purpose he entrusted 16 Tolas 5 Annas 26 grains of old gold ornaments on 21/3/1975 to a certified goldsmith Shri Narayan Murthy Achari who was recommended to Shri A. Raja Rao by Shri Doki Janardan Swamy. That another 8 Tolas 12 Annas and 10 grins + 14 Tolas 6 Annas of old gold ornaments were also given to Shri Narayan Murthy Achari on 1/4/75 on the guarantee of Shri Doki Janardan Swamy. That certified goldsmith Shri Achari was to make new gold ornaments out of the old gold ornaments supplied by Shri A. Raja Rao on the mediatorship of Doka Janardan Swamy. That Shri Achari handed over the new gold ornaments to Shri Doka Swamy on 18.4.75, which included one piece of Chandrahar (weighing 10 Tolas & 15 grains), one piece of long gold chain (weighing 5 Tolas one Anna and 15 grains) and other new remade gold ornaments (weighing 24 Tolas 5 Annas & 25 grains); for handing over the same to Shri A. Raja Rao , the father of the present appellant.

That while the new gold ornaments of Shri A. Raja Rao were in the possession of Shri Doki J. Swamy the same were seized by the Central Excise Officers on 19/4/1975 alongwith other primary gold and gold ornaments. That two items mentioned at Sl. No. 41 & 42 of the annexure to Panchnama were the new gold ornaments belonging to Shri A. Raja Rao. That as soon as Shri A. Raja Rao came to know of the seizure he wrote a petition dt. 2.6.1975 to the Superintendent of Central Excise, Cuttack Division requesting for restoration and release of his personal gold ornaments which are specified at item No.41 and 42 of the Panchnama dated 19/4/1975.That the description of the new gold ornaments so made alongwith their weight was also given. That Shri A. Raja Rao expired in 2008 and his son Shri Trinath Rao (the present appellant) became the legal heir of Shri A. Raja Rao. That Shri Doki J. Swamy filed appeal before Tribunal on 23/5/1977 against order dated-23/5/1977 passed by Commissioner as Gold Control Adjudicating Authority. That appellant moved High Court of Orissa vide OJC No. 2249/81 praying for issuing directions to Collector of Customs & Central Excise, Bhubaneswar to release the seized gold ornaments claimed by Shri A. Raja Rao.

That on 27/9/1982 High Court of Orissa passed an order that applicant may join appellate proceedings of the seized confiscated gold pending before Tribunal. That following the directions of Orissa High Court , Late Shri A. Raja Rao moved Appellate Tribunal on 11/10/94. That by an order dated 11/10/94 Appellate Tribunal set aside the order-in-original No. 4/Gold/75/7 dated 23/5/1977 passed by collector of Customs & Central Excise, Bhubaneswar for considering the claim of Shri Raja Rao as per his petition dated 2/6/1975. That appeal filed by Shri Doki J. Swamy was also remanded to Adjudicating authority by another order dated 1/1/1996 passed by Appellate Tribunal. That after getting an order dated 11/10/1994 from the Tribunal Shri A. Raja Rao approached the office of the Respondent more than three dozen times but no order was passed by the Adjudicating authority till his death.That after the death of Shri A. Raja Rao the present appellant issued registered notices dated 16/7/2008 and 6/9/2008 to Shri Doki J. Swamy to hand over the gold ornaments to him. That on 12/9/2008 Shri Doki J. Swamy wrote to the present appellant that he had only got two items of gold ornaments on 18/9/75 and 19/4/75, weighing as 174.900 gms. received from goldsmith Shri Achari and that the same appear as Sr.

No. 41 & 42 of the seizure Panchnama dated-19/4/1975. That no reply was given by the Respondents to his clients letter written to the authorities. That by a letter dated-12/8/2010 written to the department, under an RTI application of the appellant, it was intimated that case records of the appellant are not traceable.

2.1 That as no reply /order was coming from the Collector of Customs & Central Excise, Bhubaneswar, therefore, on 8/3/2013 appellant moved Orissa High Court in W.P. (C) No. 5543/2013. That only after receipt of notice of High Court the Respondent called the appellant for appearing for personal hearing on 17/10/13. That Adjudicating authority rejected the claim of the appellant as an after thought. Ld. Advocate made the bench go through his grounds of appeal and the Annexures to appeal memorandum to argue that a Slip No. 41, recovered during seizure from Shri Doki J. Swamy ,did mention the name of Shri A. Raja Rao on 1/4/75. Learned Advocate also made the bench go through examination of investigating officers and Shri Doki J. Swamy; undertaken before the Chief Judicial Magistrate, Ganjum, Berhampur, to argue that all of them confirmed that some of gold in the seizure panchnama was claimed by one Shri A. Raja Rao. It is thus the case of the Learned Advocate on behalf of the present applicant to allow the appeal with a direction to the appropriate authorities for immediate release of gold ornaments to the present appellant which belonged to Late Shri Raja Rao.

3. Shri S.K. Naskar A.C. (A.R.) appearing on behalf of the Revenue argued that there are several contradictions in the claim of present applicant and Shri A. Raja Rao in as much as for making new ornaments for a marriage on 23/3/75 no person will give gold as late as 21/3/75. That nothing is mentioned against Sr. No. 41 & 42 of the annexure to Panchnama dated- 19/4/75 that those ornaments belonged to Shri A. Raja Rao. That what was handed over by the appellant were old ornaments weighing 39 Tolas 8 Annas & 6 grains but what has been seized is only 174.900 gms. of new ornaments. That due to difference in weight the claim of the appellant is not sustainable. Learned A.R. strongly defended the order passed by the Adjudicating authority. He also furnished a copy of another order-in-original No. CCE/Gold/BBSR-I/2014 dated 13/1/2014 passed by the same Adjudicating authority under which all the gold/ornaments, seized from Shri Doki J. Swamy on 19/4/1975, were confiscated without giving any option of redemption. It was his case that after confiscation the goods became Central Govt. property and no appeal is pending against the said order dated-13/1/2004.

3.1 As a counter to the argument of the Learned A.R. , Advocate appearing on behalf of the appellant argued that Order-in-Original No. CCE/Gold/BBSR-I/20/2014 dated-13/1/2014 has not been received by them.

4. Heard both sides and perused the case records. The issue involved in these proceedings is whether Late Shri A. Raja Rao was the rightful claimant of 174.900 gms. of gold ornaments seized on 19/4/1975, and mentioned at Sr. No. 41 & 42 of Annexures to Panchnama dated 19/4/1975, Adjudicating authority has held that the claim of the appellant is an after thought. However, it is observed from the case records that claim of Late Shri A. Raja Rao was not new. In Order No. A-1040/1041/CAL/1994 dated 11/10/1994 it is observed by this bench in para 10 that way back in 2/6/75, Atmakuri Raja Rao claimed some of the seized ornaments. Para 7 of the petition filed by A. Raja Rao before Supdt., Central Excise (Prev.), Cuttack in 1975 also claims item No. 41 & 42 of the Panchnama. Shri Doki Jananrdan Swamy in his cross examination before Judicial Magistrate on 23/11/75 while giving reply to Question No. 11, gave following answer:

"Ans : Though I have no dealings with that department therefore they have doing this false case. Golden Moon Chain and one thick chain Atmakuri Raja Rao has kept in my house. That also they have seized".

4.1 It is also observed from the cross-examination of Shri P. Krishna Rao (Supdt.-incharge of search done on 19/4/75), held before Chief Judicial Magistrate on 31/10/1975, that following was stated, interalia, in para-7.

"7.......... It is not fact that the accused made a statement that item Nos. 41 & 42 belong to one A. Raja Rao, but from the sling attached and on further investigation and claim made by Raja Rao, you could know that these items belong to Raja Rao and was entrusted to the accused for remaking the ornaments".

4.2 In view of the nature of evidences existing above as early as 1975 it cannot be said, as held by adjudicating authority, that claim of Late Shri A. Raja Rao was an after thought. The case of the Revenue will not get any support from the argument; that what A. Raja Rao gave was 39 Tolas, 8 Annas and 6 grams of old ornaments and what is mentioned at Sr. No. 41 & 42of Panchnama dated 19/4/75 is only 174.900 gms; because it can also be viewed that appellant could have also claimed some more gold ornaments out of what are listed in Panchnama dated 19/4/75. It is not the case of the Revenue that the present applicant is not the legal heir of the late appellant Shri A. Raja Rao. Accordingly, Order No. CCE/GOLD/BBSR-I/21/2014 dated 13/.1/2014 passed by the Adjudicating authority is required to be set aside because appellant has some statements to rely upon where as department has only presumptions and assumptions to rely upon.

4.3 So far as seeking direction to the appropriate authority to release the impugned gold ornaments is concerned it is observed that confiscation of Sl. No. 41 & 42 (174.900 gms.) of gold ornaments was not a subject matter of Order-in-original dated 13/1/2014 appealed against by the appellant. In the present appeal the other Order-in-Original No. CCE/GOLD/BBSR-I/20/2014 dated-13/1/14 is not agitated before the bench. The arguments of the Learned Advocate appearing on behalf of the appellant that no such Order-in-Original has been received by the appellant, may be correct because copy of the same has not been sent to the present appellant but no order on that order can be passed by bench at this stage.

5. In view of the above observations appeal filed by the appellant, for being the rightful claimant of goods specified at Sr. No. 41 & 42 of Annexure to the Panchnama dt. 19/4/1975, is allowed.

(Pronounced in the Court on 9/10/2015) Sd/- 9/10/15 (H.K. THAKUR) TECHNICAL MEMBER

K.B/-

Customs Appeal No. C/75431/2014

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