9911796707
TMI Blog1989 (7) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged in the show cause notice. 2. The facts necessary for determining this case are that the appellant is a licensed goldsmith and was proprietor of M/s. Nimta Jewellery Art at Madhusadan Banerjee Road, Nimta, Cal-49 at the material point of time. He was also doing pawn broker business and had obtained licence under the Bengal Money Lenders Act. The allegation against him as made out in the show cause notice is that his shop was raided on 4-12-1976 by the officers of the Central Excise of Gold Cell and recovered from the said workshop gold ornaments weighing altogether 469 grams valued at Rs. 18,408.00 and one private book from the said shop of the appellant. The appellant could not produce any evidence, documentary or otherwise in regard to the possession of the gold and gold ornaments, hence they seized it along with the private account book. His statement was recorded. The appellant had submitted that the gold and gold ornaments belonged to his customers and that, as he was illiterate, he could not write G 13 register, but however he assured the officers to produce the account books and account for the same at a later stage. 3. In the personal hearing granted on 6-4-1977 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t book and coming to the conclusion of the appellant having dealt with gold is totally unsustainable. The appellant has further contended that in due course of his business he experienced many difficulties when the pawnees do not get their gold redeemed and such unredeemed gold left to him is unclaimed which he is entitled to sell to recover the loan advanced by him. He has further submitted that there is no provision in the Gold (Control) Act as envisaged in Sections 6 and 39 of the Act to keep any particular type of books of accounts. He has further contended that with the books of accounts maintained by him in comparison with GS 13 it will be amply clear that there is no difference in the same. He has further submitted that being an illiterate and aged person of 70 years, his non-maintaining of GS 13 register is a mere technical fault which does not call for imposition of penalty of rupees two lakhs. 7. Sri. S.C. Bose, senior advocate appearing for the appellant, vehemently argued the case and submitted that the lower authorities have committed a series of error in not looking into the records produced by him and also in not granting the appellant sufficient opportunity to exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty is in the nature of quasi criminal proceedings and the Collector was bound to have considered it from this point of view and imposition of such a high penalty of Rs. 2,00,000/- does not stand to reason. 8. Sri P.C. Jain, JDR, fairly conceded that the redemption fine cannot be more than the value of the seized goods. To that extent he is agreeable to the Tribunal amending the impugned order. However, he maintained that the impugned order did not suffer from any irregularity. He contended that the appellant had been dealing in gold without licence and, as such, the learned Collector was justified in imposing a high penalty. 9. Heard both the sides and perused the records, and the materials placed before us. We see in the impugned order that the Collector has refused to take into consideration the private account books produced by the appellant at the time of hearing the appeal in the ground that it is an after-thought . He has come to the conclusion that the appellant might have been dealing in gold without obtaining licence only on the basis of the seized account books. We find that at the time of the raid the appellant had clearly stated that he was maintaining a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e account books seized in the appellant s shop. The appellant had strongly contended that the entries in the private account books were not pertaining to the purchase or sale of gold at all. Even for a moment if it is taken that the appellant dealt in gold, the seized private account books cannot be the only piece of evidence to hold the appellant guilty of charges under Section 27 of the Act. More so when the appellant has totally denied with regard to the dealing of gold. It has been consistently held by this Tribunal and various High Courts that in order to hold a person guilty under Section 27 of the Act, there has to be series of transactions and not a stray or a single transaction. It has also been further held that suspicion, however grave it might be, cannot take the place of proof. This is the view taken in an unreported judgment of the Madras High Court in its judgment in C.A. No. 299 Of 1974, dated 1-4-1976 in Assistant Collector of Central Excise, Coimbatore II v. Natarajan. In this case it has been held that it is well settled that in order to hold a person to be a dealer, continuity of business viz., the several transactions, has to be proved . 12. In Assistant Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The Collector therefore has committed an error in presuming and jumping to conclusion without proper inquiry that the appellant being the dealer under Section 27 of the Act. 19. It is admitted by the appellant that he had not maintained GS 13 register. But however he had contended that he had maintained private account books which were similar to the GS 13 register. Maintenance of GS 13 register is mandatory and the appellant cannot take the shelter under the ground of his old age and illiteracy and seek excuse for not maintaining GS 13 register. 20. Sri Bose submitted that the appellant is no more. His legal heirs have been brought on record and that the gold seized were belonging to the pawnees whose affidavits have been filed before this Tribunal and that requires to be returned to them by the legal heirs. He submitted that a nominal penalty be imposed for not maintaining GS 13 register. He has heavily relied on the order of this Tribunal in appeal No. GD(T) Cal. 7/80, dated 29-11-1983 in respect of the raid done on the same day on the adjacent goldsmith who had admitted the guilt of dealing in gold and in whose case the Tribunal had shown leniency in reducing the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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