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TMI Blog1986 (12) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... so recovered. The purity and weight of the seized gold was also tested. After proper verification, weighment and testing, the Valuer certified that the seized gold weighed 594.000 gms of 24 carats purity. In his statement the said Shri Jitender Kumar Bhutani stated that he was carrying the seized gold to Sri Ganganagar to be delivered to the appellant who had given him on amount of Rs. 1,03,000/-for the purchase of the gold. He further stated that he purchased the gold from one Shri Shiv Prakash Soni of Jodhpur and the gold was delivered by Shri Shivji Soni to him at the residence of the said Shiv Prakash s brother-in-law Shri Ravinder Kumar where he stayed on 13-7-83. As a follow-up action the business premises of the appellant was also searched which resulted in the recovery of 29.300 gms of primary gold which was kept concealed in the pocket of his shirt worn by him. Another quantity of 35.150 gms of primary gold was recovered from one Shri Ramesh Kumar who was present at the business premises of the appellant at the time of the search. The said gold was also seized. (However, we are not concerned with the recovery of the said 29.300 gms of primary gold which was seized from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd financier of the confiscated gold. He further submitted that the statement of all the persons including the said Jitender Kumar Bhutani was recorded u/s 108 of the Customs Act and not under the provisions of the Gold (Control) Act and therefore, the same cannot be relied upon. In answer, Smt. Nisha Chaturvedi, learned SDR supported the impugned order. 5. Before we discuss the merits of the case we would like to dispose of the contention of the learned Counsel for the appellant that the statement recorded under the provisions of the Customs Act cannot be pressed into service in bringing home a charge against the appellant under the provisions of the Gold (Control) Act. From the record, we observe that the statements were recorded by the Superintendent of Customs in connection with the seizure of gold in question. In such a situation, it does not stand to reason as to how one could argue with any justification under law that the statements so recorded by a competent officer at the time of seizure of gold cannot be made use of in the proceedings under the Gold (Control) Act. In this view of the matter we are supported by the decision of this Tribunal rendered in the case of Deena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold and that he purchased the gold from one Shiv Prakash Soni (co-guilty and not before us) through Shivji Soni and that he was carrying the seized gold to Sri Ganganagar to be delivered to the appellant. In his statement, dated 15-7-83 the said Shiv Prakash Soni denied any acquaintance with the appellant. Likewise, Shri Ravinder Kumar at whose house the seized gold was said to have been delivered by Shivji Soni to Shri Jitender Kumar Bhutani also denied any acquaintance with the appellant. From the record we observe that immediately after the seizure of the gold in question on 13-7-83, the business premises of the appellant was also searched on 14-7-83. Statement was also recorded in which he denied any connection with the seized gold. From the record we also observe that in reply to the Show Cause Notice, the said Shri Jitender Kumar Bhutani claimed the ownership of the seized gold and had stated that on account of some grudge against the appellant for refusing to repay a certain sum of money which the appellant s father owed to him (Jitender Kumar Bhutani) he had earlier named the appellant as the person who had given the money for the purchase of the gold. From the record we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the gold in question except the retracted statement of the said Shri Jitender Kumar Bhutani. No corroborative evidence worth the salt is forthcoming on the record. On the contrary we find that immediately after the seizure of the gold in question on 13-7-83 the business premises of the appellant was raided but nothing incriminating connecting the alleged financing of the purchase of the gold in question was found. The statement of the appellant was also recorded on 14-7-83 itself in which he denied any connection with the seized gold. From the record it is clear that the statement of Shri Jitender Kumar Bhutani was also recorded on the following day, that is to say, on 15-7-83. But it is curious that while recording his statement he was not confronted with the statement of the appellant which was recorded on 14-7-83 drawing his attention towards the fact that the appellant had denied the alleged financing of the purchase of the gold in question. It is said that the telephone number of the appellant was also found with the said Shri Jitender Kumar Bhutani on 13-7-83 but curiously enough the investigating agency did not even think it proper to ask the said Jitender Kumar Bhutani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gold (Control) Act, 1968 itself provides a complete machinery for the cancellation of gold dealers licence. Section 50 of the Gold (Control) Act, 1968 is on the point. Section 50 expressly provides that the Gold Control Administrator is empowered to cancel or to suspend the gold dealer s licence under the circumstances mentioned therein. But proviso to Sub-section (1-A) of Section 50 expressly lays down that no licence shall be cancelled unless the holder thereof has been given a reasonable opportunity of showing cause against the proposed action. In the presence of the aforesaid express provisions of the law how the Adjudicating Authority had ordered for the cancellation of the licence is not understandable. Be that it may be, since we have held that no contravention of any provisions of the Gold (Control) Act, 1968 is proved against the appellant, it is not necessary for us to pause and dwell over the issue any further. 8. In the light of the foregoing discussions, we held that the Revenue has failed to prove the charge levelled against the appellant. Consequently, the appeal is allowed and the order imposing the personal penalty on the appellant and also cancelling his gold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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