9911796707
TMI Blog1985 (8) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... ld ornaments weighing 1548.750 gms. valued at Rs. 74.100/-. The Central Excise Inspector seized the excess gold ornaments in the reasonable belief that the appellants had contravened that provisions of the Gold Control Act. The appellants 1 and 2 in their statement recorded on the date of seizure stated that they were disturbed mentally and were working since morning without taking food and that they would appear in Poona office along with their third partner on 14-4-1976 and would make detailed statements. The statement of the appellant, Shri Shivram Gopal Kaigaonkar was recorded on 17-4-1976. While admitting the seizure of the excess gold ornaments and not writing the registers G.S. 11 and G.S. 12 since 1-4-1976 he had stated that due to old age he was not looking after the business of the firm and his two sons, namely the appellants 2 and 3 were looking after the business of the firm. 3. The statement of appellant No. 2, Shri Ashok Shivram Kaigaonkar was recorded on 21-4-1976. In his statement among other things he had stated that his father had retired from the business due to old age. His brother Shri Subhash Kaigaonkar and himself have been looking after all the transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hearing of this appeal, Shri Wazifdar, the appellants learned Advocate submitted that the first appellant had since died and the other appellants are the legal representatives of the first appellant. His further submissions were : (1) During the adjudication proceeding the appellants had requested the Collector to furnish them a copy of the enquiry or the investigation report and also requested cross-examination of the investigation officer. The Collector had rejected their request. Therefore, they preferred an appeal before the Gold Control Administrator. The appellants received a reply requiring them to prefer the appeal after the adjudication order was passed. Against the said letter dated 1-7-1977 they filed a writ petition before the High Court and the High Court directed the Gold Control Administrator to consider their appeal and accordingly the Gold Control Administrator passed the order dated 5-12-1978. In this order the Gold Control Administrator had permitted the appellants to make a fresh application for production of other documents and also to make a request for examination of any particular witness including the officers of the department. But then the Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Criminal Court, the order passed in an adjudication proceedings would not become null and void. Shri Senthivel further submitted that the first three appellants were the partners of the 4th appellant, a partnership firm and under law penalty can be imposed on the firm as well as on the partners. Therefore there is no illegality in the order of personal penalty imposed on the appellants. Shri Senthivel also urged that it is not mere non-maintaining of the accounts, there was no explanation as to the possession of the excess new gold ornaments. In the circumstances the order of confiscation was legal and he therefore prayed that the appeal may be rejected. 8. I have carefully considered the submissions made on both sides and perused the records of the case. 9. The following facts are either undisputed or over which there is no controversy. The 4th appellant, M/s. S.G. Kaigaonkar was a partnership firm. The appellants, 1, 2 and 3 were the partners of that firm. The appellants 2 and 3 are the sons of appellant No. 1. The firm at the relevant time held the gold dealers licence. On the date of checking, namely, on 11-4-1976 G.S. 11 and 12 registers were found written up to 31-3-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer was not waived or given up and therefore, the Collector should have given them that opportunity. There is no force in this contention. The Gold Control Administrator had held that the appellants cannot as a right claim for the copy of investigation report. Therefore, it cannot be contended that the Collector committed any error when he observed that his order was upheld by the Gold Control Administrator. Since the appellants did not make any request for production of other documents or for cross-examination of any witness, the present contention that the request earlier made subsisted and that the Collector should have voluntarily given an opportunity to the appellants cannot be accepted as a correct proposition. When the appellants should have been permitted by the Gold Control Administrator to produce documents and seek cross examination of any witness, if they wanted then they should have made a request before the Collector after the Gold Control Administrator s order was communicated to the Collector. In the absence of such a request the grievance now made cannot stand scrutiny. Therefore, the said contention is rejected. 11. The second legal contention of Shri Wazifda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation offered by the appellants. During the course of this order I have set out the undisputed facts. On the date of seizure, namely, on 11-4-1976 though two of the partners were present they could not give any explanation as to the possession of the excess gold ornaments found in the shop. The subsequent explanation given was that the 3rd appellant, Shri Subhash purchased the gold ornaments at Kolhapur and Bombay and brought them to the shop but did not inform the other two appellants and also kept the vouchers in his brief-case and as such the other two appellants could not give any explanation on the date of seizure. It was not the case of the appellants that Shri Subhash was not in the town from 11-4-1976 till 21-4-1976 on which day the above explanation was put forward for the first time. According to the statement of the first two appellants it was the appellants 2 and 3 who were looking after the business. The statement of the second appellant was that he was looking after the transactions at Ahmednagar and his brother was making purchases from Bombay, Nagar, Kolhapur and Karwar. This indicates that the appellant, Shri Subbash was actively taking part in the business o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion fine in lieu of confiscation. 15. The only other aspect that remains for consideration is about the personal penalty. As has been seen earlier the Collector did not impose any penalty on the firm. He had however imposed penalty on all the three partners. Shri Wazifdar contended that there was evidence to show that the 1st appellant was an old man and he had retired from the partnership. Therefore no personal penalty should have been levied on him. Shri Senthivel however contended that all the partners were responsible for the transactions carried out by the firm and therefore, there is no illegality in the order passed by the Collector. Section 93 of the Gold Control Act provides : Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The proviso to said sub-section reads : Provided that nothing contained in this sub-section shall render any such person liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
