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TMI Blog1988 (8) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of these appeals Shri Deshmukh brought to my notice that the appellant in appeal No. 63/83 had died on 26-9-1987. No application was made within the prescribed time for bringing the legal representatives of the said appellant on record. But then, he has submitted that he was one of the partners of the firm. 4. Since the firm as well as the other partners were already on record, the challenge if any made by the deceased appellant insofar as the penalty on the firm would still be valid but then his appeal insofar as the penalty on him stands abated and therefore his appeal insofar as it relates to penalty on him personally, is rejected as abated. 5.The brief facts necessary for the disposal of these appeals are :- M/s. Waman Hari Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and who have taken back. 6. After completion of the investigation show cause notices were issued to the firm as well as the 10 partners of the firm alleging that they failed to issue receipt vouchers and to make credit entries in the GS 12 register in respect of 7031.100 gms of new gold ornaments received from the goldsmiths between 24-12-1980 and 30-12-1980. It was further alleged in the show cause notice that true and complete accounts were also not maintained in respect of 237 cases in their repair register. It was further alleged that in as many as 20 cases the firm had made double entries in respect of the receipt of ornaments in addition to totaling errors in respect of 11 cases. Therefore the firm as well as the partners were ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants the affidavit of the printer with whom the orders were placed for printing the vouchers was filed before the Collector. The Collector in his order did not state a word that the affidavit was not acceptable. Since satisfactory reasons had been given for not issuing vouchers in the printed form and for not making the entries in the GS 12. Shri Deshmukh contended that the Collector ought not to have imposed any penalty on the firm which had a standing of 75 years and against which there was no previous case of violation of any of the provisions of the Gold (Control) Act or Rules. He submitted that as many as 20 employees are employed. The turn-over of the firm is about 18 crores. The departmental officers found as many as 2,10,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 gms the officers who had searched the premises did not even consider fit to seize the same apparently because they were satisfied having regard to the volume of business it was a very negligible discrepancy. As regards the Collector s finding on which Shri Mondal relied, suffice it to say that the appellants had not been given an opportunity to explain as to the excess found by the Collector. When the Collector found excess much more than that what was found by the officers during the search, at least during the adjudication proceedings he should have given an opportunity to the appellants to explain the same. The Collector s order nowhere indicates that the appellants were given such an opportunity. In the circumstances, Shri Mondal s co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in his order. 12. It is not the case of the department that there is no record at all as to the receipt of the gold ornaments from the goldsmiths. Slips which were described in the order as private slips were available to the officers who had visited the licensed gold dealer s premises. The slips gave all the required particulars. The officers verified the correctness of the slips by questioning as many as 41 goldsmiths. They also verified the GS 12 register maintained by the goldsmiths. They were satisfied as to the genuineness of the transactions. Surprisingly, the Collector does not even whisper in his order as to the genuineness or otherwise of the slips. If once we are satisfied as to the non-availability of the printed vouchers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be obtained. 29th December was a holiday. On 30th December the concerned employee remained absent without intimation. Copy of his leave application attached".... Thus it is seen, that the procedure which the appellants follow to make the entry in the GS 12 register was after the entries in slips are transferred to the printed vouchers. This procedure may be correct or may not be correct. But from that no inference of lack of bona fide can be inferred. Even with regard to this procedure the Collector s order is totally silent. 14. Looking to the magnitude of the transactions, the turn-over and the reasonable explanation of the gold dealer, the lapse is so trivial which does not warrant invoking of penal provisions. The Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X
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