9911796707
TMI Blog1989 (2) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... of his guilt, in a position worse than before he came in appeal? (ii) Did the Appellate Tribunal go outside its functioning by trying to find reasons for the failure of the adjudicating authority in giving certain explicit judgements based on facts and records and hold that such judgment should be deemed as implied or by reference? 2. In order to appreciate the above questions, facts of the case, in brief in appeal G/37/88-NRB are set out below :- 2.1 On 7-8-1985 Gold Preventive Officers of the Central Excise Collectorate checked the stock/accounts of gold and gold ornaments of the appellant firm herein. As a result thereof, 4 pcs. of new gold ornaments of 22 cts. purity weighing 67.400 gms. valued at Rs. 13,615/- were found short on actual physical verification, when compared to the entries made in the statutory accounts and records maintained by the appellant firm. Shri Ashwani Kumar Mehra, brother of Shri Yashpal Mehra, Proprietor of the above firm present in the shop could not produce any evidence documentary or otherwise to explain the above shortage. 2.2 In his statement dated 6-9-1985 recorded under Section 63 of the Gold (Control) Act (GCA), 1968, Shri Yashpal, Prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antity of gold found short in the instant case is not explained by any issued vouchers or there is no explanation as to why the entries of such gold having been short has not been entered in the relevant GS-12 register. Contravention of Section 55 read with Rules 11 and 13, therefore, has taken place in the instant case and therefore, the gold, though not available for actual confiscation has become liable to confiscation. Hence the penalty under Section 74 of the Act is justified. Even though there is no positive finding of the liability to confiscation of the gold in question, yet such a finding is necessarily implied in the finding of shortage of the 67.400 gms. of gold by the learned Adjudicating Authority. 3.2 Next plea of the learned Advocate before the Tribunal at the time of hearing of the appeal was that imposition of penalty was an action in personam; therefore, unless any mala fides of the person concerned were positively found no case for penalty can be sustained. He relied in particular on a decision of the Supreme Court, for this proposition, in the case of Hindustan Steel Ltd. v. State of Orissa (1978 E.L.T. J 159). He contended that a finding of 10 mala fides on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placing the applicant in a position worse than before he came in appeal. 5. I have carefully considered the aforesaid submission with reference to the first question. I have serious doubts in accepting the plea of the learned Advocate. The findings of the Tribunal as already extracted above are based on appreciation of evidence on a question raised before the Tribunal, i.e. sustainability of penalty imposed on the applicant, as the Tribunal has clearly observed that the finding of the adjudicating authority was based on no evidence at all. In this connection Tribunal s finding in Para 2(iii) in order No. A/228/88-NRB, dated 26-7-1988 in appeal No. E/1079/88-NRB is also reproduced below :- (iii) I, also, feel that the learned Adjudicating Authority s observation to the effect keeping in view the human factors and also the accuracies of equipments and scales for the weighment used over a period of time of 4-5 years or even in relation to physical stock of about 42,000 gms found on the date of check, the variation of about 2% found in the form of shortage should not be treated as any major variation", is, to say the least, without any evidence on record. There is no evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... With reference to the second question the learned Advocate has again pointed out that the charge in the Show Cause Notice was that the gold found short had been Unauthorisedly parted with and not that entries in accounts had not been properly made. This plea has been dealt with by the Tribunal not by any evidence on record but by implications and inferences and, therefore, it is a question of law. Learned Departmental Representative on the other hand urges that the finding of the Tribunal is again an inference of fact from findings of fact and there is no question of law arising in this finding of the Tribunal. 5.4 I have carefully considered the plea of the learned Advocate for the appellants but I am unable to agree with his plea. Finding of the Tribunal regarding non-ac-countal of the gold or in other words unauthorised parting with the gold flows inferentially from the finding of fact (even admitted by the appellant/applicants) regarding the shortage of gold in the absence of any positive and specific explanation regarding such shortage. Supreme Court s judgment in the case of Meenakshi Mills Co. Ltd. v. CIT [1957 (31) ITR 28,50 (SC)] considering the scope of Section 256 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
