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TMI Blog1986 (9) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... e. On 20-9-1982 at about 3.00 P.M., the Supreintendent of Central Excise, Quilon and party visited M/s. Swaminathan & Sons, Main Road, Quilon and inspected the accounts of the shop. The authorities found that accounts were written only upto 18-9-1982. The authorities also found two paper packets in a secret cavity below the bottom of the show case adjacent to the cash counter, hidden by a wooden fid and the paper packets were found to contain gold ornaments and gold coins totally weighing 367 grms. Since the gold coins and ornaments were not accounted for in the statutory accounts, they were seized by the authorities under mahazar as per law. Appellants Selvarajan and Ramanujam gave a statement before the authorities on 20-9-1982 that the gold coins and ornaments were not accounted for. It is in these circumstances after further investigations, proceedings were instituted against the appellants which ultimately culminated in the present impugned order, now appealed against. 4. Shri Santhanagopalan, the learned counsel for the appellants submits that no licence has been granted under the Act in favour of any firm under the name and style M/s. Swaminathan & Sons and merely beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 12. It was, therefore, contended that even if the contravention is held, established or proved, the penal consequence that would be applicable would be only under Section 75 and not under Section 74 of the Act. 6. The learned Senior Departmental Representative, Shri K.K. Bhatia, urged that even though there is no licensed partnership firm under the name and style of M/s. Swaminathan & Sons, inasmuch as the partners are the licensed dealers and have responded to the show cause notice issued against the firm M/s. Swaminathan & Sons, the firm must be construed to be in existence in the eye of law and the impugned order visiting the firm with the penalty is in order. The learned Senior Departmental Representative further urged that Section 55 is general in nature and comprehensive in its scope and would certainly take within its ambit all kinds of situations wherein gold or ornaments, old or new and received by a gold dealer either for the purpose of remaking or for the purpose of repairs. In elaborating on this, the learned Senior Departmental Representative contended that notwithstanding the fact that Rule 12, which refers to the register of repairs, does not specifically men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they belong to various claimants, the ornaments should not have been ordered to be confiscated in view of the proviso to Section 71 of the Act. The plea of the learned Counsel for the appellants that contravention of Section 55 of the Act would not come into operation in the facts and circumstances of this case and that under Section 55, a licensed dealer will have to maintain a true and complete account of the gold under his possession or custody only in terms of Rule 11 and in conformity with GS 11 and GS 12 forms, referred to supra, is not well founded. In my opinion, GS 11 and GS 12 forms prescribed by Rule 11 for maintenance of true accounts as enjoined on a licensed dealer under Section 55 would govern a different situation. GS 11 will come into play in respect of maintenance of accounts of gold and old ornaments or articles for melting and GS 12 will come into play in respect of ornaments or articles for sale. Rule 12 deals with the Register of Repairs and in terms of Rule 12, every licensed dealer who receives any articles or ornaments for effecting any repairs thereto shall maintain accounts in a register containing particulars such as date of receipt of the article or or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual liability if at all, to pay a penalty of Rs. 1000/- in terms of residuary Section 75 of the Act. I am afraid, the scope of the Gold (Control) Act cannot be construed in such a narrow fashion so as to put it in a straight jacket leading to an anamolus situation as the one illustrated above, paving the way for infraction of the provisions of the Act. I therefore, hold that the appellant has been clearly proved to have contravened Section 55 of the Act read with Rule 12 of the Gold (Control) Act, 1968. The plea of the learned SDR that the adjudicating authority has not accepted the claims of the various claimants but has merely chosen to exonerate them of a charge of abetment is not acceptable in the face of the very impugned order itself. In the instant case, immediately on seizure, the licensed dealers have come forward with the version that the ornaments under seizure belonged to the various claimants, (the various appellants herein) giving their names and relevant particulars and the same has also been verified and found to be true. The show cause notice issued to the various claimants would also traverse only these averments and in the impugned order also, the case of the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants in not making entry of the ornaments in the repair register is venial in nature and technical in character warranting a sympathetic consideration. The learned Counsel for the appellants at this stage made a fervent plea that the venial breach of the appellant in the facts and circumstances of this case should not be construed to be a penalty disentitling them in respect of their renewal of a licence and in the circumstances of this case, I hold that this contravention which is of a technical nature is not a disqualification. 9. In this view of the matter, I modify the impugned order appealed against in respect of the quantum of penalty and reduce the penalty imposed on the appellants Selvarajan and Ramanujam from Rs.10,000/-to Rs. 2500/- each. 10. In the result, Gold (Control) Appeal Nos. 90/86 (MAS) is allowed and 91 and 92 of 1986 are dismissed with modifications indicated above. Since the case of the appellants in Appeal Nos. 93 to 102/86 has already been accepted by the adjudicating authority under the impugned order, the appeals are dismissed as mis-conceived in law. 11. Except for the above modifications all the appeals except A. No. 90/86 are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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