9911796707
TMI Blog1988 (11) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... 1010 gms. of old gold ornaments under Section 73 besides a penalty of Rs. 3,00,000/- and Rs. 10,000/- respectively on appellants Murugesan and Chandra Kumar under Section 74 of the Gold (Control) Act, 1968, the Act for short. 4. The appellants herein are brothers and are living in the same house at Palayam, Nedumangad of Trivandrum District. Appellant Murugesan is a licensee under the Act. His brother appellant Chandra Kumar obtained a licence under the Act on 14-3-87. On 27-3-87 on the basis of prior information the Central Excise authorities searched the residential premises of appellants and found appellant Murugesan in possession of 3,597.500 gms. of new gold ornaments, 1010 gms. of old gold ornaments,.... 10 gms. of gold of foreign origin, two gold coins of foreign origin weighing 16 gms., primary gold weighing 206.000 gms., crude gold in the forms of ring weighing 23.000 gms. and Indian currency of Rs. 1,20,630/-. Since the authorities had reason to believe that the gold ornaments had not been accounted for in the statutory accounts of appellant Murugesan and had reason to believe that the currency represented the sale proceeds of contraband gold, they effected the seizur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly explaining about the gold and ornaments as belonging to various third parties and in such a circumstance the adjudicating authority in fairness should have investigated the genuineness of the claims of appellant Chandra Kunmar. The impugned order was assailed as bad in law on the ground that the claims of various claimants were neither enquired into nor investigated by the authorities during adjudication. Finally, the learned Counsel submitted that in any event the quantum of fine and penalty on appellant Murugesan is exorbitant and heavy warranting a substantial reduction. The learned Counsel also submitted that absolute confiscation of 16 gms. of gold coins numbering two is also not warranted in the circumstances of the case. Regarding appellant Chandra Kumar the learned Counsel submitted that the charge of abetment even assuming the entire case of the Department to be true cannot be said to have been made out since even creating a false evidence subsequent to the commission of an offence would not make the person an abettor in the offence committed by appellant Murugesan earlier in a point of time. 6. Shri K.M. Vadivelu, the learned D.R. placed reliance on the inculpatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure and against appellant Murugesan. On going through the statements, we are satisfied that they are voluntary and true and would merit acceptance. As rightly contended by the learned D.R., the appellants did not react to the inculpatory statements at all till after they gave a reply to the Show Cause Notice on 16.10.87. Apart from the fact that the mahazar, a copy of which was furnished to the appellants, clearly mentions about the statements and other relevant circumstances, the statements also admittedly are in the hand of the appellants themselves in Malayalam and appellant Murugesan being a licensee in business cannot pretend that he was totally unaware of the nature of the statements which he have before the authorities in his own hand. In this context, we would like to refer to the petition sent to the Collector by appellant Chandra Kumar on 14-4-87. This petition of appellant Chandra Kumar traverses through the various averments in the statements and the petitioner has offered explanation in regard to the same. If really the appellants were totally handicapped in even considering the nature of the case against them by reason of the absence of a copy of their own statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that by reason of the very claim of appellant Chandra Kumar claiming absolute ownership of the gold ornaments in his petition dated 14-4-87 referred to supra the belated claims of the various claimants stand totally discredited. We, therefore, hold that reference to the proviso to Section 71 of the Act in the context of this case is totally irrelevant and has no application. Therefore, on careful consideration of the entire evidence, we are inclined to hold that the charges against appellant Murugesan have been brought home by the evidence on record and in this view of the matter, we confirm the findings of the adjudicating authority as against appellant Murugesan. 9. So far as the gold biscuit weighing 10 gms. is concerned, it had foreign markings viz. Credit Suissee and the order of absolute confiscation is, therefore, sustainable in law under the Customs Act, 1962. However, in the facts and circumstances of the case we reduce the penalty on appellant Murugesan under the Customs Act, 1962 to Rs. l,000/- (Rs. One Thousand). 10. So far as two numbers of gold coins with markings George Emperor V on one side, and a horse with soldier on the other side weighing 16 gms. are co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be liable for absolute confiscation. In the facts and circumstances of the case, we reduce the penalty on appellant Murugesan under the Gold (Control) Act, to Rs. 75,000/- (Rupees Seventy-Five Thousand). 11. On going through the entire evidence we find that the charge of abetment against appellant Chandra Kumar is not supported by any evidence on record. Even at the initial stage immediately on seizure appellant Chandra Kumar claimed absolute ownership of the gold and gold ornaments and this version of appellant Chandra Kumar was only corroborated by appellant Murugesan in the earliest statement of 28-3-87. It is only subsequently, possibly in a bid to extricate his brother from the clutches of law, appellant Chandra Kumar had to evolve a patently untenable claim, initially claiming ownership of the gold and ornaments to himself and later on shifting the ownership to various third parties and to prop up such a claim produced certain documents. We have no hesitation to hold that the plea of appellant Chandra Kumar and documents produced by him shifting ownership to various third parties had to be merely mentioned to be rejected as utterly unacceptable. Be that as it may, the subs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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