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TMI Blog1987 (5) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... rnaments weighing 115.600 gms. under Section 73 and a penalty of Rs. 1,000/- under Section 71 of the Gold Control Act, 1968 ('Act' for short). 2. The appellant is a pawn broker. On 23-3-1985 at about 4.00 P.M. the Superintendent of Customs and Central Excise, Vijayawada, visited the appellant's shop at No. 53, Pattabhi Market, Machilipatnam, and found the following ornaments :- Sl. No. Description of the ornaments No. No. Net Qtty. In Gms Purity Value Rs. Remarks. 1. Gold Bangles -- 2 23.720 18 Ct. 3,795/- New oranment with new dharmakata slip dated 9-3-1985 on reverse of slip ther is indication of quantity of gold given etc. 2. Gold Bangles -- 1 7.850 18 Ct. 1,255/- -do- 18-3-1985 3. Gold ear studs (without sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that in order to sustain a charge under Section 27(1) there must be acceptable legal evidence on record to show that the appellant was dealing in gold as a dealer in contravention of law or that the appellant was carrying on business as a dealer or had commenced business as a dealer without any licence. The learned Consultant further urged that items covered by Serial No. 8 and 9 above are ornaments of 14 Ct. purity and could not have been manufactured in the recent times since it is common knowledge that nobody would normally buy 14 Ct. ornaments when ornaments of 18 Ct. purity is permissible in law. It was further urged that the appellant being a pawn broker came forward voluntarily to explain and account for the ornaments under seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority is that the ornaments being new could not have been pledged with the pawn broker and need not have been kept in the show-case. It is not disputed before me by the learned Department Representative that Items 8 and 9 viz. 22 ear studs are of 14 Ct' purity. One important factor I should like to take note of from the list of inventory is that the items covered by Serial No. 3, 5 and 8 are without screws Land normally one would not be able to deal with ear-studs as a dealer without studs having screws. The Madras High Court in the case of Kanyalal Chandrakumar v. Union of India by judgment dated 17-4-1978 [published in Cencus (Madras) 74D (Vol. VII 1979) (not cited at Bar.), has held that mere possession by the pawn broker of some una ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not take the place of proof since the proceedings are penal in nature. Unfortunately, in this case the authorities have not set out any charge nor made any everments against the appellant in respect of contravention under Section 6(2) for non-accountal of the ornaments under seizure. The learned Departmental Representative also does not dispute this fact after referring to all the records such as show cause notice and the order of the original authority. In such a situation I am including to hold that the appellant is entitled to the benefit of doubt in respect of the charge under Section 27(1) in the facts and circumstances of the present case. Accordingly, by giving the appellant the benefit of doubt, I exonerate him of the charge under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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