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TMI Blog1986 (3) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... 84 searched the business premises of the appellants who are licensed gold dealers at 165, Big Bazaar Street, Trichy, and noticed primary gold and gold ornaments weighing 149.600 gms., valued at Rs. 23,790/- not accounted for in the statutory accounts. The Officers also detected a secret door in the shop connecting the residential premises of appellant Venugopal, one of the partners and a search of the residential premises of Venugopal resulted in the detection of primary gold and gold ornaments weighing 337.450 gms., valued at Rs. 60.741/-, in excess of the declaration furnished by him under the Act. The unaccounted gold and ornaments in the business premises as well as in the residence were seized under mahazar attested by witnesses as per law. Appellant Venugopal on 25-2-1984 gave a statement before the authorities that the gold and ornaments under seizure were not properly accounted for as per the Act and he would not be able to give any explanation for the excess of gold and ornaments in the shop as well as in his residence, as his brother appellant Jayakumar was looking after the partnership business. Appellant Venugopal further admitted that he had signed the purchase voucher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such the impugned order was assailed as bad in law for non-consideration of the points urged by the appellant. The learned consultant further contended that in respect of the gold and ornaments seized from the residence of appellant Venugopal, out of a total quantity of ...100 gms. of primary gold, 64,200 gms. was the resultant of melting family ornaments for making ornaments for the new born child and the balance of 35.800 gms. would represent accumulated remnants returned by goldsmiths on various occasions. Regarding the balance of 237.450 gms. of ornaments unaccounted, it was contended that they were returned by two goldsmiths Ramachandran and Muthukrishnan under voucher No. 1590 dated 25-2-1984 and 1589 dated 25-2-1984 and those ornaments were banded over to the appellant s mother by the said goldsmiths for the purpose of safe custody since appellant Jayakumar was away at Madrag and appellant Venugopal was laid up with ailment, and they were eventually to be accounted for during the course of the day. Finally it was urged that non-accountal in the facts and circumstances of the case would only be a technical breach not warranting imposition of fine or penalty. 4. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry gold bits. 5. I have carefully considered the submissions of the parties herein. In my opinion when the appellants put forth a plea that certain ornaments were received in the shop either for purposes of remaking or repair and were claimed to belong to Rajagopal and Smt. Vathsala Victor, such a claim of the appellants in fairness should have been looked into and investigated during investigation and more so, considered in the order of adjudication. In the instant case, notwithstanding the fact that no such plea was put forth by the salesmen or by appellant Venugopal at the time of search and seizure, having regard to the fact that a definite plea was urged in the petition of appellant Jayakumar dated 15-3-1984 that Rajagopal and Smt. Vathsala Victor are owners of certain quantity of gold ornaments under seizure as detailed therein, coupled with the claim petitions of Rajagopal and Smt. Vatbsala Victor themselves, the authorities in fairness should have examined the claim of the claimants and the plea of the appellant and given a finding thereon. In the adjudication order this aspect of the case has not been considered by the authority at all. The learned DR drew my attention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-2-1984 and 13-2-1984 as well as the bill book from 22-2-1984 to 24-2-1984 under bill No. 1587 to 1593. One important factor that has to be taken note of in this context is the statement recorded from appellant Venugopal at the earliest opportunity on the day of search by the authorities on 25-2-1984 wherein he has admitted the fact of excess of gold and ornaments found in the shop as well as in his residence unaccounted in the statutory accounts of the business. This statement of Venugopal admittedly has not been resiled from till this day and to a specific question from the Bench the learned consultant for the appellants fairly conceded that the statement of Venugopal dated 25-2-1984 is true and voluntary. In such a situation I have no doubt in my mind that the appellants have been transacting gold business in their residence as well as in their shop in contravention of the provisions of law without bringing them into account as evidenced by the excess found in the house as well as in the shop. So far as the quantity relating to the claim of Rajagopal and Vathsala Victor is concerned, as I have held earlier, purely on a technical ground inasmuch as the same was not considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sells or transfers gold. It in not disputed before me that no such accounting was done by the appellants in terms of Section 55(1) of the Act. 7. So far as the charge under Section 16 is concerned it is the plea of the appellants that they have got time to make a declaration within 30 days from the date of acquisition and it is for the Department to prove that no such acquisition was made by the appellants within 30 days is not legally tenable. The appellants were found in possession of gold and ornaments and under law they are statutorily bound to give a declaration in terms of Section 16 of the Act. It is the plea of the appellants that they have acquired the ornaments within 30 days prior to the date of seizure and such a plea has to be substantiated and proved only by the appellants, and the Department cannot be called upon to prove the negative that the appellants did not acquire the gold and ornaments within 30 days prior to the seizure. I therefore in the facts and circumstances of the case hold that the charge under Section 16 has been made out on the evidence on record. 8. So far as the charge under Section 32 is concerned, since a licensed gold dealer under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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