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TMI Blog1986 (8) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... Act read with Section 74 could have been imposed in law as when the gold stood physically explained and accounted for, no offence punishable for violation of Section 55 could ever have been deemed to have been committed. (c) The learned Tribunal having been satisfied regarding the possession of 258.5 grams of gold ornaments (218 grams actually found) as two pieces were lost weighing 40.5 grams is not authorised in law to impose any penalty with regard to the possession of such gold or any offence arising thereto. The penalty can be imposed only in a case where gold is liable to be confiscated. In this case gold having been fully explained to the satisfaction of the Tribunal could not have been ordered to be confiscated and therefore no penalty u/s 74 is leviable. (d) The Tribunal has acted in excess of jurisdiction in coming to a conclusion that any violation of Rules 13 of the Gold Control (Form, Fees and Miscellaneous Matters) Rules, 1961 has been committed by the Petitioner s firm as no violation of Rule 13 was found proved before the Tribunal as Form GS-12 is maintained under Rule 11. (e) The Tribunal has no jurisdiction in law in relying upon some document as a confess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r showed a balance of 95 pieces new gold ornaments weighing 258.500 grams. Shri Jagdish Raj explained that out of these 95 pieces, 2 pieces weighing 40.500 grams were lost and the remaining 93 pieces weighing 218.000 grams were taken by him to the shop, but could not make entry in the GS 12 (Local) Register for want of time. This quantity was found by the officers in excess of the recorded balance in GS 12 (Local) Register. The explanation was not accepted by the Department. 3. On scrutiny of a private Bahi seized from the residential premises, it was found by the officers that except 8 entries, as listed in paragraph 1(iv) of the Collectors Order-in-Original, all other entries in the said Bahi were tallying with the statutory records maintained by the firm under the Gold (Control) Act, 1968. Total weight of the new ornaments as per those eight entries comes to 1495.900 grams. Those ornaments were described in the Bahi to be of 22 carat, except one transaction of ornaments weighing 94.400 grams, and were sold to various parties as recorded in the Bahi . Shri Jagdish Raj stated that three entries (vide serial No. 1, 2 and 8 of the list in paragraph 1(iv) of the order-in-or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of new gold ornaments weighing 258.500 grams shown as unsold balance of stock in GS 12 (Touring) Register were actually sold while on tour and the seized quanity of 93 pieces weighing 218.000 grams were not unsold stock brought back from tour. As regards 1495.000 grams representing 8 transactions in the private Bahi seized from the residential premises of Shri Jagdish Raj, the Collector held that the same represented new gold ornaments sold to several parties of the statutory records. Those ornaments were out of the gold illicitly acquired by the firm. Regarding the quantity of 1093.600 grams of new ornaments as mentioned in paragraph 1(iv) of the order-in-original, the Collector held that the said ornaments were sold while on tour, and the vouchers only were brought by Shri Joginder paul to make up the said quantity by procuring gold through tainted measures. Collector confiscated the seized ornaments weighing 218.000 grams under Section 71 of the Gold (Control) Act and imposed a penalty of Rs. 3 lakhs on M/s. Jagdish Raj Sons under Section 74 of the Act. An appeal was filed before this Tribunal. After appreciating the facts and circumstances and the evidence of the case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and hence, confiscation of seized gold ornaments was illegal. Regarding point (d) he has stated that non-entry in GS 12 (Local) register could be a violation of Rule 11 of the Gold Control (Forms, Fees and Misc. Matters) Rules, 1968 and not of Rule 13 as mentioned in the show cause notice and the order-in-original. Tribunal did not have Rule 11 in mind. Since the contravention was of Rule 11 and not of Rule 13, the Tribunal s order is not according to law. Referring to (e), (f) and (g) which relate to the same point the learned advocate has argued that in the absence of any corroborative evidence, this Tribunal could not accept the entries in Bahi to be transactions of gold ornaments and could not reject the applicants explanation that those related to transactions of silver. In respect of point (i), the learned advocate has challenged the imposition of consolidated penalty for contravention of Sections 8 and 55 of the Gold (Control) Act and Rule 13 of the Control (Forms, Fees and Misc. Matters) Rules, 1968 and has said that according to the principle of jurisprudence, separate penalty for each contravention was leviable under Section 74 of the Act. 8. The learned S.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 shall be made as and when the transactions mentioned above take place. This is a mandatory requirement and the entries can not be postponed. Therefore, in the present case, the applicants contravened the provisions of Section 55 of the Act by not making entry in the G.S. 12 (Local) Register in respect of 218.000 grams of new gold ornaments. According to the provisions of Section 71 of the Gold (Control) Act, 1968 any gold in respect of which any provision of this Act or rule or order made thereunder has been contravened, shall be liable to confiscation. Under Section 2(j) of the Act gold includes gold ornaments. Section 74 of the Act lays down that any person who, in relation to any gold does or omits to do any act which act or omission would render such gold liable to confiscation under this Act, or abets the doing or omission of such an act, shall be liable to a penalty not exceeding five times the value of the gold of one thousand rupees, whichever is more, whether or not such gold has been confiscated or is available for confiscation. In this case, the applicants contravened the provisions of Section 55 of the Act in respect of 218.000 grams of gold ornaments seized from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the eight entries as per the siezed Bahi were held to be transactions of gold ornaments and not of silver, as claimed by the applicants. This is a question of fact. This Bahi was maintained by the applicants and was seized from their residential premises. The particulars recorded by the applicants against those entries proved that the transactions were of gold ornaments and not of silver. No further corroborative evidence was necessary to come to the conclusion derived by the Tribunal from this evidence. The Tribunal arrived at its findings after proper appreciation of the facts and evidence of the case. The appellants cannot challenge the jurisdiction of the Tribunal to arrive at its findings. The Tribunal s decision based on facts and evidence cannot also be questioned by the applicants in the Reference Application. The scope of reference application is limited only to the question of law arising out of the order of the Tribunal. No such question of law is involved here. Section 67 of the Act does not help the applicants in any way, as according to the provision of clause (b) of this Section, the seized Bahi could be admitted in evidence. In this view of the matter, the po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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