Page 197 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] BADRI NARAYAN SHARMA v. COMMR. OF CUS., C. EX. & SERVICE TAX, JAIPUR 875

partment had not followed any procedure for the disposal of the gold and the
said fact has been admitted by the department vide their letter dated 16-3-2018. It
is further emphasized that as per the procedure laid down in Customs Preven-
tive Manual, department is duty bound to issue notice to the owner or to the per-
son from whom such goods were recovered. In the present case admittedly, no
such notice was issued. The disposal of the gold, therefore, is bad in law. Appel-
lant, therefore, is entitled either for the return of the gold seized. Finally, submit-
ting that irrespective there was the dispute regarding the ownership of the
goods, the procedure laid down for disposal of the goods as per Department’s
manual was strictly to be followed. The failure thereof entitles the Appellant to
have the present market value of the gold disposed of. Order under challenge is,
accordingly, prayed to be set aside, appeal is prayed to be allowed.
7. Per contra Learned DR has submitted that the initial show cause no-
tice was adjudicated vide order dated 23-3-2000 the confiscation of the seized
gold was confirmed vide Order-in-Appeal Nos. 566-569/2004, dated 31-8-2004. It
is further submitted that there was ambiguities about the ownership of the gold.
Initially, vide order, dated 13-5-2005 Shri Narayan Sharma was held to be the
owner of the gold seized. Subsequently, a miscellaneous application was filed by
Shri Badri Narayan Sharma who filed an appeal before this Tribunal in the year
2005 against the order of Commissioner (Appeals) dated 31-8-2004. The Tribunal
observed that the appeal of Badri Narayan Sharma has already been disposed of
vide Order, dated 13-5-2005. This created a doubt in the mind of the Bench about
as to who is real Badri Narayan Sharma. Matter was, accordingly, referred to
identify the real Badri Narayan Sharma. It is thereafter that the order dated 4-8-
2015 was passed. Since the goods were seized as early as on 2-6-1999 and were
confiscated vide order-in-original dated 23-3-2000 that the department undertook
the process of disposal of seized/confiscated goods. It is due to this reason that
the order dated 4-8-2015 of this Tribunal directing the release of impugned goods
to the appellant could not be complied with. However, in furtherance thereof the
amount of sale proceeds as was received at the time of disposal of confiscated
goods was released to the Appellant vide Cheque No. 109003, dated 11-12-2015
for an amount of Rs. 4,84,585/- which has already been encashed by the appel-
lant on 11-1-2016. Impressing upon that the disposal of seized gold was absolute-
ly in furtherance of the procedure as prescribed under the statute and the de-
partment manual and that there is no infirmity in the order upholding the sanc-
tion of sale proceeds while complying the order of this Tribunal, dated 4-8-2015,
the appeal is, accordingly, prayed to be dismissed.
8. After hearing the rival contentions and perusing the entire record,
I am of the opinion that the moot question to be adjudicated herein is as to -
Whether in view of the given facts and circumstances and the order of
this Tribunal, dated 4-8-2015, the appellant is entitled to receive the mar-
ket value of the gold as prevalent for the year 2015 despite that the said
gold was disposed of in the year 2001 for value of Rs. 4,84,585/-?
To adjudicate the same the Notification No. 31/1986-Customs, dated 5-2-1986 as
has been brought to the notice by the department is hereby perused. This notifi-
cation specifies the goods which have to be dealt with in accordance of Section
110(1A) of Customs Act, 1962. The same reads as follows :
(1A) The Central Government may, having regard to the perishable or
hazardous nature of any goods, depreciation in the value of the goods with
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