1986 (8) TMI 238 - AT - Central Excise

Issues Involved:
1. Legality of the imposition of a personal penalty of Rs. 5,000/- regarding the shortage found in the shop premises.
2. Justification of the absolute confiscation of the patli weighing 116.300 grams.
3. Justification of the confiscation of 590.350 grams of primary gold.
4. Legality of the imposition of a penalty of Rs. 5,000/- for non-declaration of the ornaments.

Detailed Analysis:

Point 1: Imposition of Personal Penalty for Shortage in Shop Premises
The Central Excise Officers discovered a shortage of 895.450 grams in the stock of 22 cts. gold ornaments. The appellant explained that 709.500 grams of gold ornaments were melted, producing 706.700 grams of primary gold, which was kept in the residence for safety. However, the authorities did not accept this explanation. The Collector imposed a penalty of Rs.10,000/-, later reduced to Rs.5,000/- by the Gold Control Administrator. The Tribunal found no justification to disturb these findings, noting the appellant's explanations did not account for the entire shortage and the purity of the primary gold found did not match the melted ornaments. The Tribunal also rejected the legal contention that no penalty could be levied under Section 74 without an actual confiscation, emphasizing that the gold became liable for confiscation under Section 71 due to contravention of the Act.

Point 2: Absolute Confiscation of Patli Weighing 116.300 Grams
The Collector ordered the absolute confiscation of the primary gold weighing 116.300 grams based on its purity, suggesting it was smuggled gold. The appellant contended that this piece was a bracelet (patli) and had been in the family for over 35 years. The Tribunal found merit in the appellant's argument, noting the show cause notice did not distinguish between different sets of primary gold and the Board had previously set aside a similar finding under the Customs Act. The Tribunal concluded that the Collector was not justified in ordering absolute confiscation solely based on purity without a definite finding that the gold was smuggled. The Tribunal set aside the absolute confiscation, allowing redemption on payment of a fine of Rs. 5815, with the condition to convert the primary gold into ornaments immediately after redemption.

Point 3: Confiscation of 590.350 Grams of Primary Gold
The appellant argued that the primary gold weighing 590.350 grams represented melted ornaments, but the Tribunal rejected this contention. The Tribunal upheld the findings of the Collector and the Gold Control Administrator, confirming the confiscation and allowing redemption.

Point 4: Penalty for Non-Declaration of Ornaments
From the residential premises, ornaments weighing 590.350 grams were seized. The appellant explained that these belonged to his mother, were received against loans, or belonged to customers. The Collector imposed a penalty of Rs.5,000/- for non-declaration, releasing the ornaments to the appellant. The Tribunal found that the appellant was not legally obligated to declare the ornaments received for safe custody from his mother, but was required to declare those received from customers. The Tribunal reduced the penalty from Rs.5,000/- to Rs.3,000/-, considering the appellant's partial compliance.

Conclusion:
1. The penalty of Rs.5,000/- for the shortage in the shop premises is confirmed.
2. The absolute confiscation of the primary gold weighing 116.300 grams is set aside, allowing redemption on payment of Rs.5815, with a condition to convert it into ornaments.
3. The confiscation and redemption of the primary gold weighing 590.350 grams are confirmed.
4. The penalty for non-declaration is reduced from Rs.5,000/- to Rs.3,000/-.

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