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TMI Blog1987 (3) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... since according to the petitioner, transporting the gold from Bombay to Cuttack was risky and expensive. Subsequent to the disposal of gold by the petitioner, the Administrator imposed restrictions on 2.6.1978 in Annexure-2 prohibiting sale of the purchased gold to any other licensed dealer, but however the restrictions were not applicable to the sale effected by the petitioner it having been already pre-sold. 2. A notice to show cause was issued to the petitioner by the opposite party in Annexure-7 on 16.6.1978 to show cause as to why a penalty should not be imposed upon it under Section 75 of the Act on the charge that it had contravened Section 27(7)(b) and 55 of the Act read with Rule 13(1) of the Gold (Control) (Forms, Fees and Miscellaneous Matters) Rules, 1968 inasmuch as it had disposed of standard gold bars weighing 2 Kgs. allotted to it by the Reserve Bank of India without bringing the stock to its licensed premises at Nayasarak, Cuttack, and without accounting it in statutory records in Forms GS-11 and issue of sale vouchers. 3. The petitioner showed cause contending that it was not required to bring the gold from Bombay to Cuttack and that the provisions of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly fail. (7) Point No. 2 :- Section 27(7)(b) is a mandatory provision containing prohibition that a licensed dealer shall not carry on business as such dealer in any premises other than one specified in his licence. Licensed Dealer has been defined in Section 2(m) as a dealer who holds a valid licence under Section 27 authorising him to carry on business as a dealer. Dealer has been defined in Section 2(h)(iii) so as to include a commission agent, broker, del credere agent, auctioneer or other merchantile agent, by whatever name called. It is of course not in dispute that the petitioner disposed of the gold at Bombay through commission agents who were themselves licensed dealers. The contention of the petitioner that since it sold the gold at Bombay through commission agents who were themselves licensed dealers, it would ipso facto mean that the premises mentioned in petitioner s license extended to the premises of the commission agents is a strange submission and is wholly devoid of merit. The premises licensed so far as commission agents are concerned, are their premises in respect of which they are licensed. The petitioner, under the provisions of the Act could onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1978 which contained a prohibition that the licensed dealers, shall not sell or otherwise dispose of any gold so purchased to any other licensed dealer but may use the gold in making or repairing ornaments or articles or both and also could sale, deliver or transfer such gold not exceeding 100 grammes at a time to a certified goldsmith for the purpose of making, manufacturing, preparing or repairing of ornaments or articles or both. The petitioner having purchased the gold in accordance with the authorisation in Annexure-1, was not authorised to sell the same since the authorisation did not permit it to do so. There is nothing in Section 55 of the Act which exempts the gold purchased in accordance with Section 9 for being accounted for as is required under it. 5. The other submissions made by the petitioner that the imposition of penalty under Section 74 is vitiated since no notice for the same had been issued is however well-taken. Sections 74 and 75 of the Act may be quoted : 74. Liability to penalty :- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have rendered the gold involved liable for confiscation and hence a higher penalty was required to be imposed. No such opportunity was given to the petitioner and the finding that the gold was liable for confiscation was reached unilaterally. I am supported in this view by an earlier decision of this court reported in 1975(41)C.L.T. 138 (M/s. Alankar v. Union of India and another). That apart, the notice being under Section 75 which limits the amount of penalty to a lesser sum, a higher penalty under Section 74 could not have been imposed without notice for the same. Such a proceeding having not been taken, it must be held that the imposition of penalty under Section 74 of the Act was not possible and hence the order to that extent must accordingly be quashed. 7. Mr. A.B. Misra, the learned Standing Counsel of the Central Government however straneously urged that the petitioner having not exhausted the statutory remedies available to it under the Act by way of appeal and revision, should be kept out of the court and that it is not entitled to any relief. The submission is wholly devoid of merit. It was specifically urged by the petitioner in the writ petition that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others), the other citation relied upon by the learned Standing Counsel is also wholly inapplicable. The case arose out of an interim order of stay and it is in that context but the Supreme Court observed that where a fiscal statute is involved, the Court must have a good and sufficient reason to by-pass the alternative remedy provided by the statute. The observations were made by taking judicial notice of the fact that the vast majority of the petitions under Art. 226 of the Constitution of India are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other so as to paralyse the collection of revenue. The decision would have no application where a final order or adjudication is challenged as being violative of natural justice or as being without jurisdiction. 8. A further contention raised by the learned Standing Counsel is that since admittedly the power to levy a penalty under Section 74 was available to the opposite party, a mere non-mention of the section in the notice would not deprive him of the power to impose penalty under Section 74 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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