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TMI Blog1987 (8) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... s. At the time of the search and seizure Shri Man Singh Lamba and Devinder Singh Lamba, partners of the said firm were present. Another partner, Shri Jaspal Singh was also present, but he left the place during the course of checking. Since Man Singh Lamba, partner, could not satisfactorily explained about the excess quantity of gold ornaments, the same were seized under Section 66 of the Gold (Control) Act, 1968. It is also alleged that the issue Vouchers No.42 to 48 issued from 16.5.82 to 23.5.82 were not entered in the relevant account books. It deserves to be mentioned here that the said excess ornaments were found after taking into account the quantity covered by the said unentered issue vouchers. After usual investigation separate Show Cause Notices were issued to the appellants to show cause as to why the seized excess ornaments be not confiscated and penalty be not imposed for contravening the provisions of the Gold (Control) Act. In reply, the appellants, inter alia, contended that the excess ornaments belong to the different customers and were received by the appellants for the purpose of polishing/repairs as middlemen. After usual adjudication proceedings, the Collector, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther pointed out that at the time of the seizure the statement of Shri Man Singh Lamba was also recorded on the spot. In this statement Shri Man Singh Lamba failed to disclose the names and addresses of the alleged customers. He further submitted that a perusal of the affidavits filed by the said alleged customers would reveal that all the 15 customers delivered their ornaments not to the appellants, but directly to two goldsmiths for getting their ornaments repaired. On this premises, learned S.D.R. submitted that the defence plea that the appellant firm simply acted as an agent between the customer and the goldsmiths is not tenable in law. He further submitted that during the adjudication proceedings at no stage any alleged customer came forward to claim the excess gold ornaments by lodging their claims for the return of the ornaments in question. He further drew our attention to the fact that Repair Register of the appellant firm was also resumed at the time of seizure and it would appear from it that there had been Only three transactions of repair during the two years period, that is to say, on 15.4.80, 5.9.80 and 2.5.82 involving a quantity of 572.700 grams. This state of af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Register of goldsmiths were not filed immediately after the seizure. The inordinate delay of more than a year in filing the affidavits of the alleged customers and the photo copies of G.S. 13 Register of goldsmiths without any explanation is fatal to the defence. From the impugned order we find that on examination of the photo copies of the G.S. 13 Register produced during the adjudication proceedings, the Collector had found that the said photo copies do not indicate the names and addresses of the goldsmiths. Not only that, these copies also do not indicate the fact that the excess gold ornaments in question were returned to the appellants. These circumstances also go against the appellants. The contention of the learned Counsel for the appellants that Section 83 of the Gold (Control) Act empowers the Adjudicating Authority to receive evidence on affidavits and therefore the affidavits filed by the alleged customers should have been believed in the absence of any cross-examination by the Department has also no force. It is true that Section 83 of the Gold (Control) Act bestows all the powers of the Civil Court under the Code of Civil Procedure, while trying a suit in respect of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the alleged 15 customers has also no force. As per Section 71 of the Gold (Control) Act, whenever any gold is found in possession of a person or a dealer in respect of which any provision of the Act or Rules framed thereunder had been contravened, the same becomes liable to confiscation unless as per proviso to the section where it is established to the satisfaction of the Adjudicating Officer that the real owner of the gold was someone other than the one who was guilty of the contravention. The tenor of the wording of the proviso would clearly show that the burden of satisfying the Adjudicating Officer about the ownership of some other person is on the one from whose possession the gold has been seized or who was found to have contravened the provisions of the Gold (Control) Act or relevant Rules. This would be further clear from the initial presumption of ownership which is placed by Section 99 of the Gold (Control) Act on the person who has gold in possession, custody or control including gold ornaments. In the instant case, as is evident from the impugned order the appellants had failed to establish to the satisfaction of the Collector who adjudicated the case that the seized ..... X X X X Extracts X X X X X X X X Extracts X X X X
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