9911796707
TMI Blog1988 (9) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... d the statutory records and also the physical stock. The verification resulted in excess of 2555.995 gms. of new gold ornaments which were not accounted. The statement of the appellant was recorded. The appellant while admitting the said quantity was unaccounted stated that due to festival season his many customers had given their ornaments for making them new. But he had neither issued any voucher nor kept the account of the same in his GS -11 register. He also stated that he had not conducted stock-taking of gold ornaments lying in his premises. His further statement was recorded on 23.11.1982 in which certain documents seized from his premises were confronted and he had also contended that his statement confirmed the statement which he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. Similarly, the Collector s finding is silent regarding the other explanation given by the Gold Dealer. He also urged that during the adjudication the appellant s affidavit was filed which was also not considered by the Collector. Shri Deshmukh contended that out of the seized quantity, the quantity weighing 194.800 gms. were purchased at Belgaum and it was sent by a dealer of gold at Belgaum by registered insured post and the same was received in the appellant s premises on 24.10.1982. 6. Gold weighing 305.200 gms. were purchased by the appellant and his brother from M/s. Sangam Diamond on 25.10.1982 but then they were actually received on 26.10.1982. The brother who took delivery of the gold as well as the vouchers only deposited t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bonafide of the appellant. He further contended that the Munim who could have given some explanation though available at the time of search and seizure was not questioned. Shri Deshmukh submitted that if at all any offence had been committed by the appellant it could only be the violation of Section 55 and Rule 13 and therefore the Collector s finding that there was contravention of Sections 31 36 is unwarranted and so also the confiscation, fine and penalty. He, therefore, prayed that the appeal may be allowed. 9. Shri Prabhu appearing for the Collector while supporting the order of the Collector in toto submitted that according to the certificate produced by the appellant, dated 1.8.1983 the appellant was suffering from epilepsy a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance on the documents which were produced along with the reply to the show cause notice and the appellant s explanation made in the reply to the show cause notice. 12. Admittedly, the seizure took place on 26.10.1982. The appellant s statement was recorded on that day. Though in his statement he stated that certain gold ornaments were given by his customers for repairs, he did not even whisper that any purchases were made from any dealer and they were not accounted or were required to be accounted. All the transactions which were stated in the reply to the show cause notice took place on the date of seizure itself. Even according to the appellant s explanation in respect of the two transactions one pertaining to 305.200 gms. and another p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Shri Deshmukh that the Munim was aware of this, but then, his statement was not recorded. Assuming for the sake of arguments that the Munim was aware of it, nothing prevented the Munim to voluntarily state before the Gold Control Officers regarding the receipt of this gold. More than this, the Munim was present at the time of seizure so also the appellant. On the next day or even upto sending of reply to the show cause notice neither the Munim nor the appellant brought to the notice of the Gold Control Officers regarding the purchases made by the appellant, his brother and the gold sent by the dealer at Belgaum. This is opposed to human conduct. As late as on 23.11.1982 when the appellant was questioned, he had another opportunity to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold stated to have been received for repairs, according to Shri Deshmukh s contention, that though they were not entered in the repair register, kutcha receipts were given to the customers. It was also contended that the customers have submitted their claims to the appellant. Neither the kutcha receipts nor the claims stated to have been submitted have been produced. If the gold ornaments belonged to the customers were seized by the departmental authorities, any prudent dealer would have informed the customers regarding the seizure and in that event the customers would have staked their claims with the department directly besides making the claims with the gold dealers. Even though the appellant thought fit to file his affidavit during th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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