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TMI Blog1987 (8) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant Gurunath is the owner of a silver refinery at Madras and on 1-2-1986 the Preventive Officers of Central Excise Hqrs., Madras visited the appellant s silver refinery on prior intelligence and recovered five gold biscuits with foreign markings in a paper packet placed on the platform of the balance in the refinery. The gold biscuits were found to weigh 500.00 gms. and were valued at Rs. 1,08,000/-. Since the gold biscuits were of foreign origin and since the appellant could not account for the licit acquisition and possession of the same, the authorities effected seizure of the same as per law under a mahazar. Appellant Gurunath also gave a statement before the authorities immediately on seizure on 1-2-1986 that the gold biscuits under seizure had been deposited there by a Muslim who used to come to the appellant s silver refinery very often in the past for melting gold. The appellant also admitted the fact of melting gold in the refinery in the past and confessed to possessing contraband gold. It is in these circumstances after further investigation, proceedings were instituted against the appellant Gurunath which eventually resulted in the impugned order now appealed agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gold (Control) Act in terms of Section 8(1), 11(1) and 17(1) of the Act. For the purpose of convenience let me dispose of the case arising under the Customs Act, 1962. 5. The fact that contraband gold biscuits with foreign markings were seized from the appellant s premises does not admit of any controversy and is not even disputed. The only plea urged by the learned counsel in this context is that the appellant did not know the contents of the paper packet from which the contraband gold biscuits were recovered by the authorities. I have gone through carefully the statement recorded from the appellant by the authorities on 1-2-1986, immediately on seizure of the contraband gold. The statement gives graphic details about the appellant s association with an alleged muslim for whom the appellant used to oblige very often in the past for melting gold. Melting gold in a silver refinery is per se an offence under the provisions of the Gold (Control) Act. In spite of the fact that the appellant in his statement referred to supra claims to have known the muslim gentleman who deposited the contraband gold, I am at a loss to understand as to why the appellant did not disclose the identity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he quantity of contraband gold held by the appellant, the quantum of penalty errs very much on the side of leniency. Unfortunately no appeal has been filed by the Department seeking enhancement of the quantum of penalty imposed under the provisions of the Customs Act, 1962. Therefore, I have no other alternative except to confirm the penalty under the impugned order and dismiss the appeal (C/A. No. 215/87). 6. The charges levelled against the appellant under the provisions of the Gold (Control) Act, 1968 are under Sections 8(1), 11(1) and 17(1). For the reasons indicated above I find that the statement of the appellant is true and voluntary meriting acceptance. Possession of primary gold by Appellant who is admittedly neither a dealer nor a certified goldsmith is per se an offence under Section 8(1) of the Act. In the present case the possession of primary gold of 5 pieces has been clearly established not only by the recovery of the same as evidenced by the mahazar but also by the statement of appellant Gurunath himself referred to supra. Therefore, the charge under Section 8(1) of the Act has been clearly brought home. So far as the charges under Section 11(1) and 17(1) are conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 17 have not been brought home against the appellant by the evidence on record. The learned D.R. at this stage pleaded that the previous conduct of the appellant in regularly melting and refining gold would be a pointer to the conclusion that the gold pieces were also kept for similar purposes. I, therefore, exonerate the appellant of the charges under Section 11 and 17 of the Act for the reasons stated above. Shri Narayanan, the learned counsel at this stage pleaded that in view of the fact that the two charges have been found by the Tribunal to have not been brought home against the appellant, the quantum of penalty should suffer a proportionate reduction, since the adjudicating authority has imposed the penalty only on the ground that the appellant was guilty of the charges of contravention under three Sections. I am afraid even though at the first blush this argument would seem attractive, yet I find it difficult to accede to the plea of the learned counsel because imposition of penalty in exercise of a quasi-judicial power, is only discretionary and taking into consideration the facts and circumstances of the case, the role played by the appellant who has a silver refine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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