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TMI Blog1986 (7) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... ments be not confiscated under section 71 of the Gold Control Act, 1968 and why personal penalty be not imposed upon them under section 74 ibid. In reply, the appellants, inter alia, submitted that the said gold ornaments which were found in excess could not be accounted for in their stock register immediately on their receipt although the relevant voucher for its receipt was issued on the spot. After the usual enquiry the Adjudicating Authority held the appellants guilty for contravening the provisions of Section 55 of the Gold Control Act and imposed a personal penalty of Rs. 5000/- upon the appellants under Section 74, ibid. However, having regard to the facts and circumstances of the case he vacated the order of seizure with a direction that the seized gold ornaments be entered in the stock register as required. Being aggrieved, the appellants filed their appeal before the Collector of Customs (Appeal), New Delhi, who vide his impugned order set aside the Order-in-Original passed by the Adjudicating authority and held that the imposition of the penalty would be incongruous as the same is not authorised by the provisions of Section 74 of the Gold Control Act. Against this Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... although the relevant voucher for its receipt has been issued on the spot. Neither the voucher book was voluntarily produced by the party to the visiting officers. Thus, M/s. Paris Jewellers have contravened the provisions of Section 55 of the Gold Control Act, 1968 and consequently rendered themselves liable for penal action under Section 74 of the Gold Control Act, 1968. From the above finding, it is clear that the Adjudicating Authority held that the seized gold ornaments were liable to confiscation under Section 71 of the Gold Control Act, 1978. 4A. By the impugned order the Collector of Customs (Appeals), New Delhi has set aside the order passed by the Adjudicating Authority by observing as follows :- I have considered the matter and I am convinced that the appellants have a case in law. Section 74 of the Gold Control Act makes it very clear that the liability to penalty is on any person who in relation to any gold does or omit to do any Act which act or omission would render such gold liable to confiscation under that Act. It means therefore, that rendering of the gold liable to confiscation by any Act or omission is to be proved before the imposition of penalty can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The petitioner on his own admission, failed to maintain the accounts as required by the Act and the Rules for a period of more than a week, he therefore, contravened provisions of Section 55 of the Act." In the case of C.C.E. v. M/s. Kailash Jewellery House, decided by this Hon ble Tribunal vide its Order No. MISC. 67/85-NRB, dated 16.12.85 observed as follows :- It is also submitted that the ornaments should not have been returned and should have been confiscated as required by Section 71 of the Gold (Control) Act, 1968. This Section provides that the ornaments shall be liable to confiscation, but does not provide that they shall be confiscated. The circumstances of the case have to be gauged for considering the question of confiscation. We had found that there were technical defects as entries had not been made although the transactions had been duly established. In such a situation, it is not a fit case for confiscation of the ornaments and that was rightly held so by us. 5. Apart from a bare perusal of the provisions of Section 74 of the Gold (Control) Act, 1968, it is clear that any person who, in relation to any gold does or omits to do any act which act or omission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Gold Control Act. Consequently, it erred in setting aside the Order-in-Original passed by the Adjudicating Authority. 7. Learned Counsel for the respondent also contended before me that in a case where there is a failure to make a simultaneous entry/ entries in the statutory record, no mala fide should be attributed to the dealer/goldsmith. In this connection he drew my attention to a circular No. 31/1978 (F.No. 131/42/78-GC II dated 20th November, 1978) said to have been issued by the Government of India, Ministry of Finance, Department of Revenue, New Delhi to all Collectors of Central Excise. From this circular I also observe that one the representation made by the trade that during peak hours of business, particularly during festive seasons, it is not always possible to make entries in the accounts as and when a particular transaction takes place. On that presentation it appears that Ministry of Finance issued instructions as stated above to their Collectors that where vouchers have been issued but simultaneous entries are not made in the accounts, no mala fide can be attributed and these may be extenuating circumstances. As regards this contention, it would suffice to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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