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TMI Blog1989 (2) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of this finding set aside the penalty imposed on the firm. The learned S.D.R. submitted that this finding of the Tribunal that the firm in question was not in existence at the relevant time when the offence was committed is not factually correct and the records would show that the firm was in existence and therefore, this error apparent on the face of the order of the Tribunal has to be rectified under Section 81A(2) of the Act. The learned S.D.R. submitted that M/s. Selvarajan and Ramanujam entered into a partnership as evidenced by a Deed of Partnership, though not registered, dated 29-3-82 for the purpose of dealing as dealer under the Act and submitted the same to the Department and the Department accorded recognition to the said partnership deed on 20-7-82. Business was also carried on by the said firm with the approval of the department. Therefore, when the firm was found to have committed an offence under the Act on 20-9-1982 proceedings instituted against the firm as well as the individual partners comprising it would be legally valid and tenable under the Act and the finding of the Tribunal in the impugned order of the Tribunal setting aside the penalty on the firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate stage suo motu; a fortiori the Department would be precluded from adducing and placing the reliance on a new document at the tune of filing a rectification application under Section 81-A(2) of the Act. The learned Counsel further urged that a firm is a recognisable legal entity for the purposes of the Gold (Control) Act, 1968. though it cannot be a juristic person under the General Law and the Department in the present case, as a matter of fact, granted a licence under the Act in the name of two individuals viz. Selvarajan and Ramanujam and having granted a licence under the Act, the licensee alone can be proceeded against and an internal arrangement between the said two persons to form a partnership firm would not convert such a firm into a licensee under the Act, notwithstanding the fact that they have held out themselves as a firm before the authorities who also accepted the same. The learned Counsel in this context placed reliance on the ruling of the Madras High Court in the case of Kathiresan filial and Others v. the Additional Collector of Central Excise, Madurai-2 reported in 1989 (19) ECC (14). Finally, the learned Counsel, Shri Suganchand Jain, submitted that the firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaning of Section 2(h) of the Act. Merely because a licence has been granted in the names of two individuals who joined together and did business in gold, that would not ipso facto convert such a transaction or the business into partnership firm within the meaning of Section 2(h) clause (ii) of the Act. I, therefore, hold that the proceedings instituted on the basis that a partnership firm was in existence and the partnership firm was the holder of a gold dealer licence are not legally tenable as against the firm and in this view of the matter, I set aside the penalty imposed on the firm. The adjudicating authority, as rightly contended by the learned Counsel for the appellants has accepted the claim of the various claimants to the ornaments under seizure and therefore, the order of confiscation of the ornaments and release of the same on payment of fine in lieu of confiscation is not legally correct. I agree with the submission of the learned Counsel for the appellants that when it has been established to the satisfaction of the officer adjudging the confiscation of the ornaments under seizure that they belong to various claimants the ornaments should not have been ordered to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... club, firm or other association of persons. The Division Bench, therefore, has held that, It is, therefore, clear that, whether a firm can be treated as a legal person or not in general law, for the purposes of Gold (Control) Act a firm is a legal entity ..... 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. The Division Bench has further observed, It is, therefore, clear in the context of the Gold Control Act that in the case of a firm, the person" who holds a licence is the firm itself. As under the Income-tax Act, so under this Act a firm is also a person capable of holding a licence." This ruling of the Division Bench of Delhi High Court has been referred to and followed by the Madras High Court in the case of Kathiresan Pillai referred to supra. In the case decided by the Madras High Court one Kathiresan Pillai was holding a licence as a dealer under the Act and entered into a partnership with three others to carry on the business under the name and style Sujatha Jewellers . Thereafter the licence was issued in the names of the four partners and was also renewed for the years 1983 to 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials, I find that no licence had been granted in the name of the firm M/s. Swaminathan Sons and no such firm was in existence within the meaning of Section 2(h) of the Act at the time of the commission of the offence viz. 20-9-82. Therefore, I do not find any error at all in the impugned order of the Tribunal and on the other hand the finding of the Tribunal is in accordance with the evidence on record and therefore, the rectification application is dismissed. In view of my categorical finding with reference to the evidence on record that M/s. Swaminathan Sons was not a firm in existence as a licensee under the Act on 20-9-82, and consequent dismissal of the rectification application, I do not feel called upon to pronounce upon the other question raised by the learned Counsel for the Respondent. 6. The Reference Application G/Ref/147/86 arising out of the impugned order of the Tribunal filed by the Collector of Central Excise, Cochin, sets out the same issue as question of law viz. whether the firm M/s. Swaminathan Sons was in existence at the relevant time or not. In view of my findings on fact with reference to evidence that no such firm was in existence and on the cont ..... 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