T.L. Vishwanatha Iyer, J.@mdash78.500 grams of gold belonging to the petitioner was seized from his jewellery shop in East Fort Gate, Tripunithura for alleged violation of certain provisions of the Gold (Control) Act, 1968 (the Act, for short), and the Rules framed thereunder. Petitioner is a licensed dealer in gold. The adjudicating authority, namely the first respondent passed order Ext. P1 on January 28,1980 directing confiscation of the gold, but giving the Petitioner an option to redeem the same on payment of a fine of Rs. 4000/- within thirty days. A penalty of Rs. 250/- was also imposed on the petitioner.
2. Petitioner challenged the order in appeal, which was ultimately dealt with by the Customs, Central Excise and Gold (Control) Appellate Tribunal. Pending appeal, he had moved the Tribunal for stay of operation of the order of adjudication Ext. P1, but no order appears to have been passed thereon. The Tribunal disposed of the appeal on June 12, 1984 by which the order of confiscation and imposition of penalty was confirmed, but the redemption fine was reduced from Rs. 4000/- to Rs. 2000/-. A copy of the Tribunal''s order is Ext. P10.
3. The Petitioner, thereafter, approached the Assistant Collector with a request to return the seized gold after receiving the redemption fine of Rs. 2000/-. This was not with the reply Ext. P9 dated September 22,1984 stating that the Original Order of adjudication Ext. P1 had required the petitioner to redeem the gold within thirty days of the receipt thereof, that this period had not been extended in the further proceedings, mand therefore the petitioner had lost "the facility" for redemption on payment of the fine. It was further pointed out that the confiscated gold had already been deposited with the Government Mint as Government''s property.
4. Petitioner challenges Ext. P9 and seeks direction to the respondents, either to return the 78.500 grams of gold, or, in the alternative, to pay him the value of the gold at the current market rate after accepting the redemption fine of Rs. 2000/- from him.
5. The respondents contend that the Tribunal had passed the Order Ext. P10 in ignorance of the fact that the gold had already been sent to Mint as Government''s property. The only effect of the order was to enable the petitioner to get refund of Rs. 3000/- out of the redemption fine of Rs. 4000/- if the amount had been paid earlier, and the gold redeemed. If the gold had not been redeemed, the Tribunal''s order was ineffective and unworkable. The gold had been otherwise appropriated and the petitioner was not entitled to relief.
6. I am afraid this contention of the respondents is not sustainable. The order of adjudication is appealable, in certain cases, to the Appellate Collector with second appeal to the Tribunal, and in others, directly to the Tribunal. The order of the Tribunal is subject to reference to this Court, on questions of law arising out of it. The appeal lies on questions of fact and law. The order of confiscation as well as the quantum of the redemption fine are open to challenge. The Appellate Authority possess all the powers of the adjudication authority, and could pass any order appropriate to the matter as it deems fit. It could set aside the order of confiscation and direct the gold to be returned or it could remit the matter for fresh consideration. When all these contingencies are possible, it will be inappropriate and improper for the respondents to deal with the gold and to appropriate it as Government property thereby defeating the final order that may be passed in appeal, or in reference by this Court. The fact that an order of stay has not been sought or has not been granted will not enable the respondents to appropriate the gold or to contend that they are absolved of their liability for restitution or the adjudication order being set aside or varied.
7. Restitution in specie is an accepted mode of redressing the injury that may be caused to a party by a wrong order passed by any authority, and even the court. This should follow as a matter of course. A party liable to make restitution cannot escape from those consequences by depriving himself of the capacity to make restitution. Otherwise, it will be enabling him to make advantage of his own acts.
8. The respondents'' contention here is that the order of confiscation has been confirmed. There has been only a reduction in the redemption fine ; there is no obligation for restitution, as the relief is only to the extent of Rs. 2000/-. The time for payment of the redemption fine has also not been extended. So goes the argument.
9. I do not agree. Cases can be where a party has been permitted to redeem on payment of a substantial sum which he is unable to make up at all, or to make up within the period specified by the adjudicating authority. If, in appeal, he succeeds in getting the redemption fine reduced to say 50% of the amount, which he is in a position to make up and deposit; should be he defeated of his right by appropriation of the gold to Government in the meanwhile ? The advantage of any variation, even in the redemption fine, must enure to the benefit of the party. The order of the appellate authority should be enabled to be worked out, and the benefit given to the party concerned. In other words, the owner of the gold must be enabled to redeem it on payment of the reduced amount of redemption fine. Otherwise it will be rendering the order of the appellate authority ineffective and inoperative. Such a consequence is abhorrent to law. Respondents were not therefore justified in rejecting the petitioner''s claim for redemption with the plea that they had appropriated the gold to Government in the meanwhile.
10. The above view of mine finds support in the decision of the High Court of Calcutta in
11. The fact that the time fixed by the Collector in this case for payment of the redemption fine was not extended is again immaterial. The Department should have apprised the Tribunal of the non-redemption in time and of the fact of the gold having been sent to the Mint. Having defaulted in doing so, they cannot subsequently turn round and deprive the petitioner of availing of the benefit of reduced redemption fine allowed by the Tribunal.
12. I am, therefore, of the view that the respondents are bbund to return the gold, or pay the value thereof, to the petitioner. The cause of action for the return arose on the date of passing of the Appellate Tribunal''s order. If the gold is not being returned in specie, but only the value is being paid, the petitioner has to be paid value of the gold as on the date on which the amount is being paid because it is not due to the petitioner''s fault that the gold was not returned immediately after the Tribunal''s order.
13. I, therefore, allow the original petitions. Petitioner shall deposit the redemption fine of Rs. 2000/- within a period of thirty days from today, if it has not already been deposited. If such deposit is made the respondents shall pay the value of 78.500 grams of gold seized from the petitioner as on the date on which the said value is being paid. There will be no order as to costs.
