Page 199 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] BADRI NARAYAN SHARMA v. COMMR. OF CUS., C. EX. & SERVICE TAX, JAIPUR 877

seized gold either was never brought to his notice or ever was challenged by
him. There is no denial of Shyam Lal Pal admittedly the servant of the present
Appellant to have received the notice at the time of the disposal of the seized
goods. Resultantly, I am of the opinion that the disposal of the seized goods was
absolutely in accordance of the statutory provisions. The order of return of seized
gold has been announced 14 years later than the said disposal. What can be re-
turned while complying with the directions of return of seized gold is the sale
proceeds of the said gold received at the time of disposal thereof. Also it is ap-
parent that present appellant was held owner of the seized & confiscated gold
vide order of this Tribunal, dated 13-5-2005. Time taken till the order of Tribunal,
dated 24-7-2015 directing the return of the impugned gold is on account of mis-
taken identity of Shri Badri Narayan the appellant himself. The order of confisca-
tion was otherwise served on Shyam Lal Pal as well as Shri Badri Narayan who
was held owner of the impugned gold vide order of the year 2005. The said Badri
Narayan impersonated the actual Badri Narayan whose appeal was decided in
his favour in the year 2015 does not reflect any mistake or even delay on part of
Department. It is already held that they followed due procedure for disposal of
said gold in the year 2001.
13. The Hon’ble High Court of Bombay in the case of Shabbir Ahmed
Abdul Rehman v. Union of India reported in 2009 (235) E.L.T. 402 (Bom.) has held
that when the confiscated gold was handed over for disposal immediately after
serving the order of confiscation thereof. The sale of the said gold during the
pendency of appeal before Commissioner (Appeals) is though not justified.
However, the claim of the petitioner in seeking the market value of gold cannot
be accepted. The Customs Authority is liable to return the entire sale proceeds,
however, without deducting therefrom the duty. In the present case the gold was
sold after the confirmation of confiscation and prior the appeal challenging the
same was filed. The said order of Bombay High Court has been affirmed by
Hon’ble Supreme Court vide the decision reported in 2010 (253) E.L.T. A142
(S.C.). Tribunal Ahmedabad also in the case of Om Merchant Exports Pvt. Ltd. v.
CCE, Lucknow - 2017 (358) E.L.T. 643 (Tri. - All.) has held that the appellant there-
in to be entitled for immediate release of their confiscated goods. It was, simulta-
neously, held that in case the goods have been auction sold in meantime, the
Appellant shall be entitled to sale proceeds of the same in accordance with law.
The plea of Appellant of no notice being served before disposal is otherwise not
acceptable in view of the admitted mistaken identity of the owner of the gold.
Admittedly and apparently, two different persons representing them as Badri
Narayan Sharma filed the appeal challenging the order of confiscation of the
goods, as discussed above.
14. In the given circumstances and in the light of the fact that gold is a
commodity the value whereof has been increased enormously since the date of
impugned disposal in the year 2001 till the date of the order of return in the year
2015 and that there is no apparent fault on part of the department while dispos-
ing the same. The department rather has duly complied with the order of return
of confiscated goods of the year 2015 by refunding the sale proceeds of the gold
as was received in the year 2001. The said amount has duly been encashed by the
Appellant that to more than a year prior filing of the impugned appeal.
15. As a result the question framed herein above is answered with the
finding that in the given facts & circumstance, the order of this Tribunal, dated
EXCISE LAW TIMES  15th June 2020  199