9911796707
TMI Blog1986 (8) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the members of the family of the appellant :- Gross weight Net Weight 1. Family of Jaiwant Mal Duggar comprising himself and wife. 464.000 233.500 2. Shri Gulab Chand S/o. Shri Jaiwant Mal Duggar and his wife. 761.500 494.000 3. Shri Tara Chand S/o. Shri Jaiwant Mal Duggar and his wife. 579.500 361.000 4. Inder Chand S/o. Jaiwant Mal Duggar. 374.500 196.000 Since the above gold Ornaments recovered from the possession of the members of the family of the appellant were found to be within the permissible limit under the Gold (Control) Act, the same were allowed to retain by the respective family members. It is alleged that, on enquiry with regard to the gold ornaments weighing 6001.000 gms. gross (2911.750 gms. net) recovered on 12-6-82, the appellant stated that he had not made any declaration at any stage about the possession of the gold ornaments. As a follow up action, a show cause notice was issued to the appellant calling upon him to show cause as to why the seized gold ornaments be not confiscated and why the penalty be not imposed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order, I observe that the said contentions were also raised before the Adjudicating Authority who after negativing the same held the appellant guilty for contravening the provisions of Section 16(2)(m) read with Section 6(1) of the Gold (Control) Act, 1968. 5. For better appreciation of the respective contention raised, it would be useful to set-out the relevant portions of Sections 6(1) and 16 of the Act which run as under :- 6(1) Power of Administrator to call for returns as to receipt or sale of hypothecated golds- The Administrator may, if he is of opinion that it is necessary in the public interest so to do, require any person who lends or advances money on the hypothecation, pledge, mortgage or charge of any article or ornaments to make to him, in such form and within such time as may be specified, a return as to the receipt, delivery or sale of such article or ornament and as to the persons from whom they were received or, as the case may be, to whom they were delivered or sold. Section 16, Declaration as to the articles or ornaments:- (1) Save as otherwise provided in this Chapter, every person who owns, or is in possession, custody or control of any ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as may be prescribed. (3) If any person who did not own, possess, hold on control, before the commencement of this Act, any quantity of gold in excess of the quantities specified in sub-section (5), acquires after such commencement, the ownership (whether by succession, intestate or testamentary, or otherwise), possession, custody or control of any gold and if, as a result of such acquisition, the total quantity of gold owned, possessed, held or controlled by such person exceeds the quantities specified in sub-section (5), such person shall, within thirty days from the date of such acquisition or within such further period as the Administrator may, on sufficient cause being shown, allow, make a declaration in the prescribed form station the total quantity, description and other prescribed particulars of- (a) the gold owned, possessed, held or controlled by him immediately after such acquisition, and (b) the person from whom the ownership, possession, custody or control of such gold was acquired. (4) ......... (5) No declaration referred to in sub-section (1) or sub-section (3), shall be required to be made,- (a) in relation to articles, unless the total weight of arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is obligatory on every person unless he is exempted under sub-section (5) thereof to make a declaration of all the gold articles and ornaments in his possession, custody or control. Clauses (a) to (m) of sub-section (2) specifies the person who shall be responsible to make declaration referred to in Section 16 in relation to any article or ornaments or both. Clause (m) of sub-section (2) is a residuary clause which provides that if the article or ornament or both are owned, possessed, held or controlled by any person, the declaration in relation to such person shall be made as may be prescribed. Pawn broker comes within the clutches of Section 16 also cannot be disputed in view of the law laid down in the case of Badri Prasad v. Collector of Central Excise reported in AIR 1971 S.C. 1170. A careful reading of the aforesaid provisions of sub-sections (2) and (5) with its clauses (b) (c) would show that any person may in relation to any ornaments or both articles or ornaments, own, possess, hold or control the same in two different capacities within the prescribed quantity in each of such capacities and in that event he is not required to make any declaration under sub-sections (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of the appellant in his individual capacity and not as Karta of HUF and it was found by the Adjudicating Authority that the appellant was carrying on his pawn business as an individual and it was not the family business or a HUF business as claimed by him. 8. In the result, the household ornaments of the appellant could not be clubbed together with the pawn ornaments/articles for the purpose of declaration under the Act. Since the appellant was found in possession of pawn ornaments weighing 6001.000 gms. gross (2911.750 gms. net) which exceeded the limit of 2000.000 gms. in terms of Section 16(5)(c), the appellant was bound to file declaration which he failed to do so and therefore the Adjudicating Authority has rightly held him guilty for contravening the provisions of Section 16(2)(m) read with Section 6(1) of the Gold (Control) Act, 1968. 9. Before I part with the case, I would like to observe that the direction of the learned Adjudicating Authority that the seized gold ornaments. shall be released to the appellant on payment of personal penalty adjudged was not according to law as no such direction can be issued when the penalty simpliciter is imposed. On the poin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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