9911796707
TMI Blog1987 (1) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... ned visited the business premises of the appellant and on checking found a shortage of 574.650 grams (69 pieces) of gold ornaments in the presence of Shri Devi Dass Malhotra, partner of the appellant firm. The said Devi Dass Malhotra in his statement tendered on the spot, admitted the said shortage of the gold ornaments and stated that he was out of station and his younger brother could not control the staff properly and some staff member might have committed some mistake in delivering the gold ornaments to some customer. As a follow up action, show-cause-notice was issued to the appellant for contravention of Rule 13 of the Gold Control (Forms Fees Miscellaneous Matters) Rules, 1968 and Sec. 55 of the Gold (Control) Act, 1968. In reply, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalised under Section 74 of the Act. I am afraid, this contention has no force. Sub-section (1) of Section 55 of the Gold (Control) Act, 1968, inter alia provides that every licenced dealer shall keep in such form and in such manner as may be prescribed, a true and complete account of the gold owned, possessed, held, controlled, bought or otherwise acquired, or accepted or otherwise received or sold, delivered, transferred or otherwise disposed of by him in his capacity of such licenced dealer. Sub-section (2) of the same Section inter alia provides that every licenced dealer shall, as and when he buys or sells, delivers, transfers or otherwise disposes of, any gold, enter in the accounts referred to in Sub-section (1), the prescribed pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (1) of Section 55 ibid, and without issue of a voucher as required under Rule 13 ibid. The fact that there was a shortage of the gold ornaments, is not disputed before me. The fact that gold ornaments found short, were not covered by any valid voucher, is also not disputed before me. The mis-defence of the appellants that some employees of them, might have given some excess ornaments to some customers, without having been accounted for, was negatived by the authorities below and in my opinion for the valid reasons. In these circumstances, the contention of the Ld. Counsel for the appellant that mere non-accountal of the gold ornaments in the statutory records, as provided under Section 55 of the Gold (Control) Act, 1968, cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other statutory provisions, incurring liability for confiscation under the Act. As it is not disputed that the gold ornaments found short were not accounted for in the statutory records, and were also not covered by any valid voucher, it is to be held that the liability of confiscation has been incurred under Section 71 of the Act. It may be recalled that confiscation and levy of penalty, are two independent matters. It may be, that in a given case gold may be confiscated and in other case gold may not be confiscated. Levy of penalty is an independent matter and does not depend upon the question as to whether the gold has been confiscated or not. For, as held by the Supreme Court, in Swepujanrai Indira Sanarai Ltd. v. Collector of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal or venial breach of the provisions of the Act or where the breach flows from the bona fide belief that the offender is not liable to act in the manner prescribed by the statutory, the authority competent to impose the penalty will be justified in refusing to impose penalty. In that very case it was also held that the party obliged to carry out a statutory obligation, if acts deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in disregard of its obligation, penalty may be imposed. In the instant case it cannot be said that there was a technical or a venial breach of the provisions of the Act or there was bona fide breach on the part of the appellant. On the other hand, I am satisfied that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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