1986 (3) TMI 188 - AT - Central Excise

Issues Involved:
1. Legality of confiscation of gold and gold ornaments.
2. Non-issuance of show cause notice to claimants.
3. Non-accountal and non-declaration of gold and ornaments.
4. Legality of the penalty imposed.

Detailed Analysis:

1. Legality of Confiscation of Gold and Gold Ornaments:
The appeals arose from a common order confirming the imposition of a fine of Rs. 16,300/- under Section 73 in lieu of confiscation of 168.250 gms. of primary gold and 318.300 gms. of gold ornaments. The appellants, licensed gold dealers, were found in possession of unaccounted gold and ornaments during a search by Central Excise Intelligence Unit officers. The primary gold and ornaments were not recorded in the statutory accounts, leading to their seizure under a mahazar attested by witnesses. Appellant Venugopal admitted that the gold and ornaments were not properly accounted for as per the Act.

2. Non-Issuance of Show Cause Notice to Claimants:
The appellants contended that 68.250 gms. of primary gold and 2.950 gms. of gold ornaments belonged to Rajagopal, and 78.400 gms. of ornaments belonged to Smt. Vathsala Victor. They argued that under Section 79 read with the proviso to Section 71, no order of confiscation should be made without issuing a show cause notice to the claimants. The adjudicating authority did not consider the claim petitions of Rajagopal and Smt. Vathsala Victor, which was a technical legal infirmity. The Tribunal set aside the portion of the impugned order relating to the seizure of ornaments claimed by Rajagopal and Smt. Vathsala Victor.

3. Non-Accountal and Non-Declaration of Gold and Ornaments:
The appellants were found in possession of excess gold and ornaments in both their shop and residence. They failed to make proper entries in the statutory registers, violating Section 55 of the Act. The Tribunal noted that a licensed dealer must keep a true and complete account of gold as per Section 55. The plea that the excess gold was the result of melting family ornaments or remnants returned by goldsmiths was not accepted. The Tribunal held that the appellants had been transacting gold business in contravention of the provisions of law.

4. Legality of the Penalty Imposed:
The Tribunal confirmed the charge under Section 16, stating that the appellants were statutorily bound to give a declaration of the gold and ornaments. The burden of proof was on the appellants to show that they acquired the ornaments within 30 days prior to the seizure. However, the charge under Section 32 was not proved, as the primary gold within permissible limits was found to be the result of melting ornaments. The Tribunal exonerated the appellants of the charge under Section 32. The fine in lieu of confiscation was reduced from Rs. 16,300/- to Rs. 12,150/-, but the penalty of Rs. 5,000/- each was confirmed.

In conclusion, the Tribunal provided a detailed analysis of the issues, setting aside the confiscation of certain ornaments on technical grounds, confirming the charges of non-accountal and non-declaration, and adjusting the fine and penalty accordingly.

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