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1986 (5) TMI 138 - AT - Central Excise

Issues Involved:
1. Charge under Section 27(1) of the Gold (Control) Act, 1968.
2. Charge under Section 16(4) of the Gold (Control) Act, 1968.
3. Charge under Section 8(1) of the Gold (Control) Act, 1968.
4. Charge under Section 6(2) of the Gold (Control) Act, 1968.
5. Quantum of fine and penalty.

Detailed Analysis:

1. Charge under Section 27(1) of the Gold (Control) Act, 1968:
The appellant was charged with dealing in gold without a license under Section 27(1) of the Act. The appellant contended that mere possession of gold does not constitute dealing under the Act, which requires proof of continuity of transactions. The appellant cited the rulings in Kanyalal Chandrakumar v. Union of India and Mohd. Shabbir v. State of Maharashtra to support his argument. However, the tribunal found that the appellant's confessional statement on 28.10.1980, admitting that the gold was kept for sale and not covered by pawn receipts, was sufficient evidence of dealing in gold. The tribunal concluded that the charge under Section 27(1) was substantiated by the evidence on record.

2. Charge under Section 16(4) of the Gold (Control) Act, 1968:
The appellant argued that as a pawn broker, he was not obligated to file a declaration unless the quantity of gold exceeded the statutory limits. The tribunal noted that the appellant had been filing declarations until 1974 and admitted his failure to file due to "unavoidable circumstances." The tribunal held that the appellant was required to file a declaration under Rule 4(1) of the Gold Control (Forms, Fees, and Miscellaneous Matters) Rules, 1968, and that the charge under Section 16(4) was clearly made out against the appellant.

3. Charge under Section 8(1) of the Gold (Control) Act, 1968:
The appellant pleaded guilty to the charge of possessing 49 grams of primary gold found at his residence and requested leniency due to the small quantity and low purity of the gold. The tribunal deferred the consideration of leniency to the end when addressing the quantum of fine and penalty.

4. Charge under Section 6(2) of the Gold (Control) Act, 1968:
The appellant contended that he was not required to maintain accounts as no specific form was prescribed by the Gold Control Administrator under Section 6(1). The tribunal, relying on the ruling in Kanyalal Chandrakumar v. Union of India, held that Section 6(2) is independent of Section 6(1) and requires maintaining accounts of gold transactions. The tribunal found that the appellant had not accounted for the seized ornaments as per law, and thus, the charge under Section 6(2) was substantiated.

5. Quantum of Fine and Penalty:
The tribunal considered the nature and purity of the gold ornaments, noting that the old gold ornaments were of 16 to 20 carat purity, and the new gold ornaments were of 20 to 22 carat purity. Given the low purity and the facts of the case, the tribunal reduced the fine in lieu of confiscation from Rs. 2 lakhs to Rs. 75,000/- and the penalty from Rs. 50,000/- to Rs. 25,000/-. The tribunal also ordered that the primary gold be converted into ornaments through a licensed gold dealer or certified goldsmith within 30 days of redemption, failing which it would be liable for confiscation.

Conclusion:
The tribunal upheld the charges under Sections 27(1), 16(4), 8(1), and 6(2) of the Gold (Control) Act, 1968, against the appellant. The fine and penalty were reduced considering the nature and purity of the gold involved. The appeal was otherwise dismissed, with specific instructions regarding the conversion of primary gold.

 

 

 

 

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