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TMI Blog1988 (8) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... selves? (b) Whether such a power of confiscation by relying upon the rebuttable presumption of section 99 would not render otiose the valuable right granted and guaranteed by section 79 of the Act? (c) Whether it is open to the Collector of Customs and to the Appellate Tribunal to reject affidavit evidence produced before them by the parties, without summoning the deponents of the affidavits and satisfying themselves as to the veracity of the statements contained in the affidavit. (d) Whether the Collector and the Central Excise Gold Control Appellate Tribunal were justified law in imposing separate fine on each of the partners and also on the firm? Does it not go contrary to the basic tenets of the partnership Act? In other words does a partnership firm have a separate entity and a legal personality over and above and different from that of all its members. Therefore, when each and everyone of the five partners has been fined Rs. 10,000/-. Whether the separate fine of Rs. 50,000/- on the firm is legally sustainable? Will it not amount double jeopardy? (e) Whether the Collector of Customs and the Appellate Tribunal were justified in passing an order of confiscation of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. (1973) 27 FAC LR 248 SC and A.I.R. 1972 SC 330. (i) Whether on the facts and circumstances of the case the Collector of Customs and Central Excise as well as the Central Excise (Gold) Appellate Tribunal was justified in over looking the statement of Shri Man Singh Lamba, senior partner of the firm which was recorded on 29-5-1982 on the sopt wherein he had deposed that the excess gold ornament had been received from a number of Customers and relatives for repA.I.R.s and polish from the authorised goldsmiths and when he had spelt out the names of as many as 10 of them. (j) Whether on the facts and circumstances of the case that Collector of Customs and Central Excise and the Appellate Tribunal were justified in ignoring the affidavits of as many as 15 customers, who had confirmed the ownership of the gold ornaments seized by the Gold Control Authorities on 29-5-1982, which they had given for repA.I.R.s and polish to the firm. (k) Whether the Collector of Customs and Central Excise and the Appellate Tribunal were justified in over looking the statement of Sh. Man Singh Lamba the senior partner and the affidavit of the 15 customers in total disregard of a number of High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re alleged to be excess. (o) Whether on the facts and circumstances of the case the Collector of Customs and Central Excises and the Appellate Tribunal were justified in ignoring the entries in the Prescribed Register G.S. 13 of two authorised gold smiths about the repA.I.R. and polish of the gold ornaments of appellants 15 customers which were alleged to be in excess. 2. Brief facts leading to the present applications and as found by this Tribunal in paragraph 2 of its said order are as follows: 2. Factual backdrop : M/s. Man Singh Lamba Sons - appellants herein are licensed Gold Dealers having their shops at Karol Bagh, New Delhi. Other appellants are the partners of the said firm. It is alleged that on 29-5-1982 as a result of the search of the business premises of the said firm a quantity of 1502.000 grams (73 pieces) of new gold ornaments of 22 ct. purity valued at Rs. 2,46,328/- was found in excess. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o overlap each other and be treated as a single question. He further submitted that question Nos. (c), (h), (i), (j) and (k) also overlap each other and be treated as a single question. He also submitted that he is not pressing for question Nos. (n) and (o) as they are neither arising out of the order nor are questions of law. 5. As regards Question Nos. (a), (b), (e), (f) and (g) : At the time of hearing Shri Irfan Ahmed, learned counsel for the applicants while admitting that all these questions overlap each other submitted that the contraband gold ornaments which were found in excess at the time of raid belonged to the different 15 customers and therefore show cause notices should have been issued to the said 15 customers before confiscating the same in terms of section 79 of the Gold (Control) Act, 1968. He further submitted that the presumption laid down in section 99 of the Gold (Control) Act, 1968 as to the ownership of the gold could not render otiose the right granted and guaranteed by section 79, ibid to the owner of the gold. In reply Smt. Nisha Chaturvedi, learned SDK submitted that the same argument was advanced at the time of hearing of the appeal which was negative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 excess gold ornaments belong to the alleged customers. Thus, under these circumstances the question of issuing any Notice to the alleged customers did not arise." 7. From the above findings it is clear that these questions relate to the appreciation of evidence on record and after appreciating the evidence on record it was held that in the facts and circumstances of the case the question of issuing any show cause notice to the alleged customers did not arise. 8. It is made clear that as to whether the presumption as to ownership laid down in Section 99 of the Gold (Control) Act would render otiose the provisions of Section 79 of the Act was never argued at the time of hearing of the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted to a dealer . Dealer is defined in Section 2(h), as including a Hindu Undivided Family, a local authority, company, society registered under the Societies Registration Act, a co-operative society, a club, firm or other association of persons. It is, therefore, clear that, whether a firm can be treated as a legal person or not in general law, for the purposes of the Gold (Control) Act a firm is a legal entity. In fact it is common ground that licences are applied for by the firms and are granted to firms. Indeed in the case of M/s. Talwar Jewellers licence has been granted in the name of the firm itself. If the present objection had not been raised, the petitioner firm would have also been granted a licence. The Act clearly envisages a licence in the name of a firm. This is also clear from the provisions of Section 52 of the Act. This section provides that, when there is a change in the constitution of a partnership, the licence granted to a firm as a dealer will become invalid unless the change has been approved by the Administrator. This section makes it clear that the licence is granted in the name of the firm itself but that the change of the constitution of a partnershi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not merit any reference as they do not arise out of the order passed by this Tribunal. 11. As regards Question Nos. (c), (h), (i), (j) and (k) : Shri Irfan Ahmad, learned counsel for the applicant submitted that these questions overlap each other and be taken together. While arguing on all these questions Shri Irfan Ahmad submitted that it was not open to the Collector of Customs and also to this Tribunal to reject the affidavits filed during the adjudication proceedings without summoning the deponents of the affidavits and satisfying themselves as to the veracity of the statements contained in the affidavits. In support of this contention he heavily relied upon the judgment of the Hon ble Supreme Court rendered in the case of Mehta Parekh Co. v. Income Tax Commissioner, A.I.R. 1956 SC 554 and also cited the few other judgments of the different High Courts. In reply Smt. Nisha Chaturvedi, learned SDR submitted that there is no general law that affidavits should not be rejected without testing the veracity of the deponents by cross-examination or by some other means. We have considered the arguments. It cannot be laid down as a general preposition that irrespective of circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded on the spot. In his 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 repA.I.R.ed. On this premises, learned SDR 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 10 the fact that RepA.I.R. 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 repA.I.R. during the two years period, that is to say, on 15-4-1980, 5-9-1980 and 2.5.1982 involving a quantity of 572.700 grams. This state of affA.I.R.s, according to him, would Prima facie show that the appellant firm hardly handle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izure. 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 certain matters which includes receiving evidence on affidavits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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