The Kolkata Customs, Excise and Service Tax Appellate Tribunal ( CESTAT )held that the possession of ornaments is not an offence and allowed to release of Gold Balas from custody.
The Appellant Shri Sailendra Narayan Panda has filed some documents which would go to show that he is the legal heir of the Late Binod Bihari Panda. The 11 gold Balas of the Appellant are lying with the Department since 02.04.1976. The High Court by an order dated 16.07.1992 was pleased to set aside the confiscation order passed by the Adjudicating authority holding that the said 11 gold Balas are primary gold and the High Court was further pleased to remit back the matter to pass an order to the effect that whether the said 11 gold Balas are primary gold or the ornaments, based on the evidence available on record.
It was observed from the HC that no definite tests have been prescribed under the law to conclude as to whether gold is primary gold within the meaning of Section 2(r) of the Gold Control Act, 1968 and held that it depends on the proof and in assessing the evidence led, the opinion of the expert.
The Adjudicating authority failed to appreciate the evidence adduced by the claimant of the gold Balas that it is usual and common that the said gold Balas are used by the people of that locality as ornaments on their neck and also wrist.
A Coram comprising of Shri P K Choudhary, Member(Judicial) observed that under the new fiscal policy, possession of gold is not an offence. Since the matter has not been adjudicated by the Adjudicating authority in any way as per the direction of the High Court for a long 27 years and the meantime, the Act itself has also been repealed for 30 years.
It was evident from the photographs of the item seized under the impugned order that a definite shape has been given to the gold Balas in question and had it been a primary gold, it would have been a simple gold rod or plate or pieces, and it should not have been bent and also given a certain shape which is evident from the picture.
The CESTAT held that “the seized gold Balas are ornaments and may be released to the Appellant.”The impugned order was set aside and the Appeal filed by the Appellant was allowed with consequential relief, as per law.
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