9911796707
TMI Blog1989 (9) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... gms. Value (1) (2) (3) (4) (5) 1. Churi 46 22 ct. 344.000 2. Har 09 22 ct 195.000 3. Bunda 13 22 ct. 058.000 4. Anguthi 47 22 ct. 138.000 5. Bali 30 22 ct. 48.000 Rs. 26,800.00 6. Tops 16 22 ct. 28.000 7. Pendals 03 22 ct. 09.500 8. Jhumka 06 22 ct. 20.000 9. Tika 09 22 ct. 37.000 10. Kara 01 22 ct. 76.000 Total Weight : 953.500 In respect of the aforesaid gold ornaments, Shri Ashok Kumar Rastogi stated that as there was no cash vouchers or any other documents with him, and the aforesaid gold ornaments were seized by the Gold Control Officer in presence of two independent witnesses: 2. A show cause notice dated 6-4-1985 was issued to Shri Rastogi calling upon him to show cause to the Additional Collector as to why for violation of the provisions of Sections 27(7) (b) and 55 of the Gold (Control) Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ornaments under Section 71 of the Gold Control Act, 1968 and gave an option to redeem it on payment of fine of Rs. one lakh and further imposed a penalty of Rs. thirty thousand on the appellant. It is against that order the present appeal is filed. 6. The Ld. Advocate, for the appellant, Shri A.K. Rastogi contended that possession of gold or gold ornaments does not prove that appellant is doing business in gold. Secondly, he contended that he is not a dealer in gold and it is his father who is a dealer in gold with licence Number 1/69 and that he is not a partner in the firm. He further contended that since he is not a dealer in gold the question of his contravening Section 27(7) (b) does not arise. He further contended that the appellant could not be said to have contravened Section 27(1) of the Gold Control Act as there was no such allegation against him in the show cause notice and alternatively he contended that the act does not require obtaining a licence for effecting a single transaction of sale or purchase of gold whatsoever the magnitude of the transaction. He further contended that the first statement given by the appellant before the Customs Officer was retracted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation of gold are in accordance with law; Point No. (i): We are unable to accept the contention of the Ld. D.R., Shri P.C. Jain that it is established that the appellant is a dealer in gold and has contravened Section 27(7) (b) and Section 55 of the Gold Control Act. The reason is that the appellant had stated in his reply to Show Cause Notice that it is his father who has got the licence bearing No. 1/69 and he is not a partner in his father s firm along with his reply he had furnished an affidavit sworn by his father, Sri Ramnath Rastogi testifying the above fact of licence standing in his name and also by stating that gold ornaments seized in this case do not belong to him. He has also furnished the affidavits of his wife; and three other relations who had sworn that the gold ornaments belong to them and they have given it to appellant to mortgage them for obtaining funds to raise a new business. In fact, the Ld. Collector himself has accepted this case of the appellant in para 14 of his order which reads as follows : Para-14: It is established that Sri A.K. Rastogi is not a licensed gold dealer. . However, the facts and circumstantial evidences of the case convin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h in para-12 the Ld. Collector held that appellant is a licensed dealer in para-14 he came to a contrary finding. In fact, there is no evidence to show that appellant is a licensed dealer dealing in gold. On the contrary, the affidavit filed by his father establishes that the licence 1/69 stands in his name and not in appellant s name. In such circumstances, the initial statement given by appellant that he is a licensed dealer with licence No. 1/69 which is retracted later cannot form the basis to come to this conclusion and hence we hold as per Point No. l that it is not established that appellant is a gold dealer and that he has contravened Section 27(7)(b) and Section 55 of Gold Control Act. Point No. (ii) : As far as the second point is concerned in the first instance we observe that there is no allegation in the whole of the show cause notice alleging that appellant is dealing in gold ornaments without a valid licence and requiring him to show cause against the violation of Section 27(1) of Gold Control Act. The relevant portion of show cause notice reads as follows: Where as it appears that Sri Ashok Kumar Rastogi, S/o Sri Ram Nath Rastogi was found in rickshaw on 11-10- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Act does not require of obtaining a licence for effecting a single transaction of sale or purchase of gold whatsoever be the magnitude of the single transaction. In the instant case, even if the entire material relied upon by the department is accepted. It only establishes that the appellant had come to sell certain ornaments. He had not sold any ornament. This evidence would not be sufficient to hold that the appellant had carried on business as a dealer in gold. Therefore, the charge under Section 27(1) necessarily fails. 14: On the admission of the appellant and from the material collected the department could have charged the appellant for contravention of Section 55 of the Act, But then no such allegation was made in the show cause notice. 15 : The admission of the appellant, his presence in the gold dealers premises are taken as sufficient to infer that the appellant had come to that premises to dispose of the gold ornaments, even then, the charge under Section 27(1) cannot be brought home against him because his act does not amount to carrying on business as a dealer in gold. It only amounts to a single act of sale. The expression business contemplates series of tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned that the appellant had contravened the provisions of Section 27(1) of the Gold Control Act for selling gold ornaments without a valid licence for their purpose and on that point the gold was confiscated and the penalty was imposed on the appellant. But he was not asked to explain how he was found to have contravened Section 27(1). This also violates the principles of natural justice since he was not given the opportunity to be heard in person on this aspect. The appellant had given affidavits of his wife and three relations, from whom he had acquired the gold ornaments for the purpose of mortgage and for raising a loan for his business purpose. But none of those parties is given any show cause notice in this case. In this connection, the Ld. Advocate for the appellant relied on a decision reported in 1988 (37) E.L.T. 240 (Trib.) in the case of Prasant Kumar Das v. Collector of C.E. and also on the decisions reported in 1989 (18) ECR 625;Dadodeu Kanji Soni v. Collector of Customs -1989 (39) E.L.T. 410; Pravin Kumar M. fain v. Collector of Customs (Prev.) -1989 (39) E.L.T. 489, wherein it was held that gold belonging to third parties cannot be confiscated unless there was knowle ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
