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TMI Blog1986 (9) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... cts in appeal No. 89/86 in respect of appellants M/s Jewellery House may be stated before dealing with the common question of law arising for consideration in both the appeals. On 22-11-1985 one Shri Surender Singh Rajawath, a travelling salesman of the appellants arrived at Cochin airport with gold ornaments totally weighing 3810 gms, in the form of 537 bangles along with G.S.12 register, Gold voucher book bearing Sl. Nos. 151 to 193 of the appellants, Jewellery House, cash bill etc. The said travelling salesman stated before the authorities that the said ornaments were being taken to Kerala for the purposes of sale. The Customs authorities effected the seizure of the gold ornaments and informed the Central Excise authorities who took over further investigation. Since a lincesed gold dealer cannot carry on business in any premises other than the licensed premises as stipulated under Section 27(7)(b) of the Act, the gold ornaments were seized by the authorities and proceedings were instituted against appellants Jewellery House resulting in the aforesaid impugned order now appealed against. 4. Similarly, in the other appeal (No. 132/86) Shanthilal Jain, a licensed gold dealer of N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have any right, power or jurisdiction under law to bypass the mandatory provision of law and accord permission. In respect of the appellant in Appeal No. 132/86 referred to supra the learned DR further urged that admittedly 253.450 gms. had been sold by the appellant without the same being entered in the statutory register G.S.12 and without being covered by any sale voucher. The learned D.R. further urged that no power at all was exercised by any authority in terms of Section 109 and no order has been passed by the Central Government in exercise of the power of Section 109 of the Act either permitting sales by travelling salesman outside the licensed premises of licensed dealers much less empowering the authorities either to issue Trade Notice or accord permission for sales outside the licensed premises. The learned D.R. also urged that Trade Notice will not over-ride the provision of law and Trade Notice No. 8/74 dated 30-11-1974 actually withdrew the facilities accorded under the other two trade notices referred to above. 7. I have considered the submission of the parties herein. The important question that arises for my consideration in the above appeals is whether a li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness as such dealer to the premises specified in his licence . The division Bench of the Andhra Pradesh High Court in Writ Appeal No. 870 of 1974 in the case of M/s Laxmi Jewellery v. Govt. of India by Judgment dated 25-11-1974 has held that the Administrator has no power to grant a licence to a dealer except to permit a dealer to carry on business at the licensed premises . Interpreting the scope of Section 27(7)(a) and (b) the learned Judges have held that even if the authorities has issued any trade notices in contravention of Section 27(7)(a) and (b) it was in excess of the power conferred upon such authority under the Section and the competent authority (the Administrator) cannot act beyond the power vested in him by the Parliament under clauses (a) and (b) of Section 27(7) of the Act. The Division Bench further observed Any concession made beyond the limits of clauses (a) and (b) of that provision will be illegal and void and beyond the competence of the executive power . Likewise, the Division Bench of the Allahabad High Court in the case of Union of India and others v. Uttar Pradesh Sarafa Association and others by Judgment dated 14-8-1975 held that Section 27(7) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation is the result of a quasi criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious diregard to its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute . In the instant case the appellants acted in the honest and genuine belief that they would be entitled to transact business in gold ornaments outside their licensed premises by virtue of the official permission accorded in their favour. Therefore, in the peculiar facts and circumstances of this case I am incli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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