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TMI Blog1989 (4) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... aments totally weighing 2249.600 gms. which included 5.700 gms. of primary gold. Since the authorities had reason to believe that the ornaments which were found new were being taken for purposes of sale in contravention of Section 27(7)(b) of the Act, they effected seizure of the same under a mahazar as per law. Appellant Praveen Kumar Jain gave a statement before the authorities on 31-8-1987 that he was an employee of appellant J.J. Jewellers and that the ornaments were being taken for purposes of sale and that all the ornaments had not been entered in the G.S.12 Register. It is in these circumstances after further investigations proceedings were instituted against the appellants resulting in the present impugned order. 3. Shri L. Suganchand Jain, the Learned Counsel for the appellants at the outset submitted that the gravemen of the charge against the appellant J.J. Jewellers is that the ornaments in question had not been accounted for in terms of Section 55 of the Act. The adjudicating authority would appear to have viewed the contravention grave particularly in the context of the alleged violation under Section 27(7)(b) of the Act. It was submitted that appellant J.J. Jewelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 27(7) (b) and Section 36 of the Act, the only charge that would survive would be one under Section 55(2) of the Act. Even in respect of this charge of contravention, the learned Counsel submitted that on 2-9-1987, the authorities verified the G.S.12 Register of appellant J.J. Jewellers at Nellore and the same was found to contain entries relating to Voucher No. 150 158 and the quantity of ornaments covered by the said two vouchers would total upto the ornaments under seizure in the present case. The Learned Counsel therefore, submitted that if at all there is any contravention the contravention would be only with regard to the fact that subsidiary G.S.12 Register which the travelling salesman is supposed to carry did not contain entries of the ornaments and in particular did not contain entries in regard to the total quantity of 1133.100 gms. covered by Voucher No. 158. The Learned Counsel did not dispute that this contravention has been made out but the breach is purely technical in the facts and circumstances of the case and on that basis, the Learned Counsel made a fervent plea for a substantial reduction in the quantum of fine and the penalty. 4. Heard Shri K.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealing with a charge of contravention under Section 27(7)(b) has observed as under : We shall now take up the fine and penalty imposed on the appellants under the provisions of Gold (Control) Act, 1968. It is not disputed by the learned D.R. that appellant Mohanlal B. Jain, a licensee, was armed with an order of the High Court of Andhra Pradesh to transact business outside the licensed premises through travelling salesmen. This fact also is clearly mentioned by the adjudicating authority himself in the impugned order. No doubt, in our view, Section 27(7)(b) of the Gold (Control) Act, 1968 clearly enjoins on a licensed dealer not to carry on business as such dealer in any premises other than the premises specified in the licence. In this context we may also refer to the ruling of the Supreme Court in the case of Manik Chand Paul 35 Others v. Union of India 3 Others (Writ Petition Nos. 918 to 953 of 1977, decided on 17-4-1984) wherein the Supreme Court, while upholding the constitutional validity of Section 27(7)(b) of the Gold (Control) Act, 1968, has held that Section 27(7)(b) confines a licensed dealer to carry on business as such dealer to the premises specified in his li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according permission to appellant Mohanlal B. Jain to transact business outside his licensed premises, it would not be proper to get over the same on the ground that the order of the Andhra Pradesh High Court would not be valid beyond the territorial jurisdiction of the High Court. It should be noted that the Department was a party to the writ proceedings as one of the Respondents. Therefore, when by virtue of an order of the High Court appellant Mohanlal B. Jain was transacting business of sale of gold ornaments with another licensee viz. Fashion Jewellery at Kerala, neither of them can be said to be guilty of contravention of the provisions of the Act in the peculiar circumstances. We also find from the impugned order that the interim order of the Andhra Pradesh High Court was valid till 24-6-1987 and the sale was on 27/29th March, 1987 and the seizure was on 30th March, 1987, when the interim order of the High Court was in force. We, therefore, hold that appellants cannot be said to be guilty of contravention of the provisions of the Act by reason of the interim order of the Andhra Pradesh High Court referred to above. In this view of the matter we set aside the fine and penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the person to whom the voucher is issued etc. The voucher should be in duplicate and serially numbered and one copy to be retained by the dealer and the other by the person who receives or accepts ornaments. In the present case, we have taken pains to scrutinise the voucher and we would like to observe that the vouchers are not in conformity with the statutory formalities and the columns have not been properly filled up. As a matter of fact, on going through the voucher, we entertained an initial doubt as to whether the vouchers themselves are genuine or not and it is only subsequently when the Learned Counsel for the appellants drew our attention to the seal of the Central Excise authorities affixed on the vouchers earlier before the issue of the same, we felt convinced about the genuineness of the vouchers. So far as Voucher No. 150 is concerned. We find from the records that the same was sent by Registered Post Acknowledgement. Due to the Collector of Central Excise, Cochin, on the next morning viz. 1-9-1987 as contended by the learned Counsel for the appellants and as evidenced by the postal Acknowledgement Due Card. It is not disputed before us that appellant Praveen Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold totally weighing 5.700 gms. in terms of the impugned order. We also find the appellants guilty of the charge of contravention under Section 8 (1) of the Act. 13. We shall now take up the quantum of fine in lieu of confiscation. For the reason given above, the contravention in respect of non-accountal would be only with reference to the ornaments weighing 1133.100 gms. The total value of the gold ornaments has been put at Rs. 6.25 lakhs including the primary gold. A quantum of Rs. 2,00,000/- has been levied as fine on grounds of non-accountal of 2243.900 gins. Since the non-accountal is restricted now for the reasons given above to 1143.100 gms. and taking the value for the primary gold and keeping the value in regard to non-accountal of 1133.100 gms. in mind and also having regard to the fact that the purity of the said ornaments range from 20 to 22 ct., as stated in the mahazar, and keeping in mind that this quantum had also been accounted for in the original G.S. 12 Register maintained by appellant J.J. Jewellers at Nellore, which was duly verified by the authorities on 2-9-1987 itself, we reduce the quantum of fine to Rs. 35,000/- (Rs. Thirty-five Thousand). In fixing thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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