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TMI Blog1989 (5) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant statutory records viz. GS 11, GS 12 registers, sale and purchase voucher books being considered relevant to the proceedings of the case. Statement of the appellant was recorded on the spot in which he pleaded his ignorance about the said excess gold ornaments by stating that since he was sick for the last one week, his father was looking after his shop and that his father had left for Amritsar on 5-4-1985 and it may be possible that his father might have received new gold ornaments from some goldsmith or dealers without issuing receipt vouchers. After the seizure and the recording of the statement of the appellant on the spot neither the appellant nor his father came forward with any specific defence regarding the acquisition or possession of the excess gold ornaments till 8-4-1985 and it is only on 9-4-1985 when the appellant appeared in pursuance of summons issued under Section 63 of the Gold (Control) Act by the authorities concerned to give evidence and produce documents, that he came out with the defence that his father arrived at Delhi on 8-4-1985 from Amritsar and told him that on 5-4-1985 he (his father) received the excess gold ornaments from one M/s. New B.K. Je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a show cause notice calling upon the appellant to show cause as to why the seized gold ornaments be not confiscated and penalty be not imposed was issued. In reply the appellant inter alia stated that on 5-4-1985 he attended his shop and issued one Issue Voucher No. 1 regarding some ornaments which were required to be sent to Bombay by post but left the shop feeling unfit and giddy on account of weakness and that later on in the evening of 5-4-1985 itself Shri Kimti Lal, proprietor of M/s. New B.K. Jewellers came to the shop of the appellant with a packet containing the seized new gold ornaments alongwith Issue Voucher No. 4 dated 5-4-1985 in his absence. He further stated that at the time of arrival of the said Shri Kimti Lal, his father Shri Dwaraka Dass Seth was present in the shop who told the said Shri Kimti Lal to come the next day but he requested his father to keep the gold ornaments and that he would come next day to settle the transaction with the appellant as it would not be safe to take the ornaments back. That under these circumstances the father of the appellant took the said gold ornaments alongwith Issue Voucher and since on an urgent call, his father had to left f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kimti Lal and would have also kept the issue voucher in the shop itself and informed the appellant accordingly. The story that the father of the appellant was present at the shop and he kept the issue voucher given by the said Shri Kimti Lal in his pocket and left for Amritsar without informing the appellant about the transaction is a face saving device. She further submitted that the Collector Central Excise had already taken a lenient view by giving an option to the appellant to redeem the seized new gold ornaments. 5. Before we proceed to consider the arguments advanced by the parties it may be stated that the fact that the contraband excess gold ornaments were not entered in the statutory record as required under Section 55 of the Gold (Control) Act is not in dispute. Likewise the fact that no receipt voucher in respect of the contraband new gold ornaments was issued as required under Section 36 of the Act read with Rule 13 of the Gold Control (Forms, Fees Miscellaneous Matters) Rules, 1968 was issued is also not in dispute. And to this extent the findings of the Adjudicating Authority are not in challenge. What is in challenge is that since according to the defence the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of 5-4-1985 itself on a urgent call from Amritsar; that in a hurry he (his father) forgot to tell about the transaction to the appellant and also took the issue voucher in his pocket and that when his father arrived on 8-5-1985 at Delhi his father told about the transaction does not appear to be convincing at all. To begin with the pivot of the defence case that on 5-4-1985 the appellant was sick and therefore his father was attending the shop is not convincing at all in the facts and circumstances of the case. To wit - (i) on enquiry about the excess new gold ornaments on the spot on 6-4-1985 the appellant in his written statement came out with the explanation that he was sick for the last one week and did not attend the shop and in his absence his father was looking after his shop. To verify the said explanation of the appellant given on the spot that he was sick for the last one week and did not attend the shop the authorities concerned confronted him with the entries recorded by him in his statutory record namely GS 11 and GS 12 Registers and Issue Voucher No. 1 2 both dated 5-4-1985 (which were seized at the time of raid on 6-4-1985, when he appeared in pursuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant fell ill due to seasonal Flue type fever and became very weak; that during the first week of April 1985 the appellant attended the shop on 3-4-1985 for a short while and issued two Receipt Vouchers Nos. 1 and 2 for two transactions and that again on 5-4-1985 he attended the shop and issued one Issue Voucher. However, feeling unfit and giddy on account of weakness he left the shop for his residence on 5-4-1985. The relevant portion of his reply is extracted below - ....... At the end of March 1985 the respondent fell ill due to seasonal Flue type fever and became very weak on this account. In these circumstances he stopped attending to his business regularly. In those days Shri Dwaraka Dass Seth, father of the respondent (who is an old man leading a retired life and normally residing at Amritsar) happened to be at Delhi. To ensure that the newly started business of the respondent might not get any set-back, if his shop is closed, the said Shri Dwaraka Dass Seth lent a helping hand by sitting at the shop of the respondent during the business hours in this period, and thus enabled the respondent to spare himself from attending his shop for the whole day and take rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess hours were upto 7PM in the evening. It is the case of the appellant himself that when Shri Kimti Lal came with the contraband new gold ornaments his father Shri Dwaraka Dass Seth asked him to come on the next day to finalise the deal and refused to accept the contraband new gold ornaments but Shri Kimti Lal persistently requested to keep the same because it was going to be too dark and it was not safe for him to take the contraband new gold ornaments back and therefore his father Shri Dwaraka Dass Seth kept the gold ornaments and also took the issue voucher. The reason assigned for keeping the contraband golds in the shop of the appellant is not believable because as stated above according to Kimti Lal and Dwaraka Dass Seth the contraband gold was brought in the afternoon and the shop of Shri Kimti Lal was not too far. Besides, the alleged Issue Voucher No. 4 dated 5-4-1985 was also not found on the spot alongwith the contraband gold ornaments and the explanation of the appellant that his father kept the said voucher in his pocket and took it to Amritsar with him when he left for Amritsar without disclosing to the appellant also appears to be improbable keeping in view the quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contraband new gold ornaments. It is significant to note that according to Shri Kimti Lal himself he came to know about the seizure of the new gold ornaments immediately after the seizure on 6-4-1985 itself but it is curious that he never complained to the authorities concerned and it is only when the authorities concerned visited the shop on 10-4-1985, he came out with the said story. It is also significant that at no stage of the adjudication proceedings the said Shri Kimti Lal ever lodged his claim of ownership with regard to the contraband new gold ornaments nor he appeared as a defence witness nor he filed any affidavit and contended himself with the assurance given by the appellant that on the finalisation of the adjudication proceedings, he will return the gold ornaments to the appellant. 9. During the course of hearing photo copies of the quarterly returns filed by M/s. New B.K. Jewellers with the Central Excise Authorities for the period from January 1985 to March 1985 and April 1985 to June 1985 were also filed. After drawing our attention to the said quarterly returns and also certain issue voucher of the M/s. New B.K. Jewellers Shri M. Ganesan, learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t abundantly clear that it was as much an obligation of Shri Dwaraka Dass Seth to issue a voucher in favour of M/s. New B.K. Jewellers while receiving the gold ornaments on approval as alleged as that of M/s. New B.K. Jewellers to issue one while handing over the same. In the instant case it is admitted to the appellant that no such voucher in favour of M/s. New B.K. Jewellers was issued by the appellant s father while receiving the contraband gold ornaments. It is also admitted to the appellant that at the time of seizure of the contraband new gold ornaments Issue Voucher No. 4 dated 5-4-1985 said to have been issued by M/s. New B.K. Jewellers was not found in the shop nor any entry relating to the contraband gold ornaments was made in the statutory records of the appellant firm. The appellant has, no doubt, been able to procure some voucher from M/s. New B.K. Jewellers who themselves did not, as pointed out by us above, come forward to lodge any claim in respect thereto, but apart from the fact that this voucher (Issue Voucher No. 4 dated 5-4-1985) of M/s. New B.K. Jewellers, had it been in existence at that time, must have been produced there and then before the authorities conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the statutory records at the time of seizure and why the compliance with the provision of Section 36 by way of issue of receipt voucher had not been complied with. The main plea of the appellants before the Collector was that the appellant was not well on the day of the seizure and in fact had not been keeping well during the previous week and the appellant after attending his job for some time had gone home leaving his father, who had come from Amritsar on a visit to Delhi, to look after the shop and that he was not aware as to how the ornaments came to be kept in the shop and that his father who had left the previous evening for Amritsar and who might have received the same and that he would be able to explain. Later on, the appellant produced his father before the authorities and a voucher for the ornaments issued by M/s. B.K. Jewellers was produced having been issued on 5-4-1985. The explanation given was that the appellant father had suddenly to leave for Amritsar on a message from there and had taken the voucher covering the ornaments with him without informing the appellants about the receipt of the ornaments by him. The father was produced before the Central Excise autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorised transactions of a dealer and facilitates regulation and checking of the transactions of gold. I Find that the party has admitted that the seized gold ornaments were not entered in the prescribed records. The importance of such entries has already been emphasised in many judgments and particularly in the judgment of Allahabad High Court in the case of Kashi Nath Seth v. Collector of Central Excise, Allahabad [AIR 1976 All (35)]. Any subsequent enquiries by the Central Excise Department cannot create any estoppel to penal action for a violation which is admitted at the time of seizure and has not been directed subsequently while there may be circumstances, as pointed out by the party that his father had gone out of station, the fact remains that the seized gold ornaments were found in excess of stock as entered in the relevant records prescribed under the Gold (Control) Act, 1968. The charges framed in the show cause notice are therefore, established". 15. From the concluding portion of his findings, it is clear that the Collector of Central Excise by saying while there may be circumstances as pointed out by the party that his father had gone out of station, the fact rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seized ornaments were found to be accounted for in their records. From the sequence of events, it cannot be said that the statement given by the appellants regarding non-accounting and with the evidence produced are such as are inconsistent with the plea taken. The lower authorities during the investigation and later in the show cause notice have not alleged that the version given was an after thought nor the Collector in his order has found fault with the version given or the evidence adduced. At no time it was put to the appellants or Sh. Kimti Lal as to how the version given by them was not believable and if it was done, they would have had the opportunity to explain the position. This not having been done at this stage, I do not think it is for us to given findings on the veracity of the evidence produced and version given without any basis for the doubts, if any, having been laid at the investigation or in the findings by the Collector. The real point here is that whether when the ornaments were received, Sh. Ashok Seth was present in the shop, if not, who was present and who took the delivery of the ornaments. The evidence on record points to the fact that the same were rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I hold that a lenient view is called for. 19. So far as the ownership of the ornaments is concerned, I observe that a large quantum of the ornaments comprising of two items of the same nature had been supplied against the voucher showing the appellants as the customers. If the ornaments had got the ornaments just for approval, then there was no need for such a large quantum of the same to be supplied as for that purpose one item each of the ornament would have sufficed. It is, further, seen that Shri Kimti Lal of M/s. New B.K. Jewellers who supplied the ornaments did not claim of ornaments before the adjudicating authority and not joined in the adjudication proceedings. 20. In view of this and the other reasons set out in the appeal in the Order-in-Appeal No. 9/85-NRB, Shri Kimti Lal of M/s. New B.K. Jewellers v. Collector of Central Excise, New Delhi, it has to be held that the appellants are the owners of the ornaments. 21. Taking into account, the totality of the circumstances and conclusions above, the purpose penal action in a case like this is to ensure that the appellant will be more vigilant in future. In this background, therefore, I order while upholding the confisc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he voucher in question was recorded in their accounts. Sh. Ganesan submitted that the admission made by the appellants was only that as non-issue of voucher and explained that Sh. Dwaraka Dass the father of the appellants not having been a Partner of the firm, could not issue such a voucher. The learned Advocate finally pleaded that in a number of judgments passed by the Tribunal and even the other authorities it was seen that if there was a voucher no seizure took place even though proceedings for violation of Section 56 of the Gold Control Act were initiated. 23. Smt. Dolly Saxena, the learned SDR argued that the Member (Judicial) correctly gave a finding on the defence advanced by the appellants as the Collector did not give such a finding. She supported the finding in the Member s order to the effect that defence version was not believable. She further argued that as the show cause notice alleged that the gold ornaments were received and kept unauthorisedly, such expression was wide enough to cover all the facts and possibilities in the matter. Such possibilities included the unreliability of the voucher. She also submitted that it was only after 24 hours after the seizure th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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