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TMI Blog1989 (7) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... e stock of gold and gold ornaments and found the same tallying physically with the balance shown in the G.S. 11 and G.S. 12 Registers maintained by the firm. At the time of search three partners of the said firm, namely, Sardar Manmohan Singh Lamba, Sardar Parambir Singh Lamba and Sardar Virender Singh Lamba were present. Personal searches of all the said partners were also effected and nothing was recovered from Sardar Manmohan Singh Lamba and Sardar Parambir Singh Lamba. It was the case of the Department that 2 Kruggrrands, each weighing 33.950 gms (fine gold 1 oz) totally weighing 67.900 gms of South Africa were recovered from the right hand side pocket of the pant worn by the appellant Sardar Virender Singh Lamba. 20 documents (written papers of assorted sizes and one small red Sonal note book were also recovered from the left side pocket of the pant worn by him (Sardar Virender Singh Lamba). The said 2 Kruggrrands and the documents and note book were seized. In his statement recorded on the spot Sardar Virender Singh categorically stated that the 2 Kruggrrands of gold in question were given to him by the other appellant Sardar Manmohan Singh of Greater Kailash for framing. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had brought on the same day and that the documents said to have been recovered from him did not relate to any particular period and the contents were only rough notes of the proposed transaction. The other appellant Manmohan Singh in reply to the Show Cause Notice while corroborating Virender Singh, appellant, submitted that the said 2 Kruggrrands were lawfully imported as part of jewellery, that is to say, necklace. After the usual adjudication proceedings the Adjudicating Authority exonerated the other partners of the firm, namely, Manmohan Singh Lamba and Parambir Singh Lamba, but imposed the following penalties upon the appellants. Under Section 112 of the Customs Act, 1962 Under Section 71 of the Gold (Control) Act, 1968 1. M/s. Lamba Jewellers Rs. 1000/- (Rupees one thousand only) Rs. 13,000/-(Rupees Thirteen thousand only) 2. Shri Virender Singh Lamba Rs. 3000/- (Rupees three thousand only) Rs. 26,000/- (Rupees Twenty six thousand only) ) 3. Shri Manmohan Singh S/o Shri Jaswant Singh Rs. 5000/- (Rupees Five thousand only) Rs. 1000/- (Rupees One thousand only) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and its partners Shri Virender Singh vehemently contended that the documents alleged to have been recovered from the possession of Virender Singh have not been established that they relate to any particular period and that the contents were only rough notes. He further submitted that the two pieces of Kruggrrands in question belong to the other appellant Shri Manmohan Singh; and that the said Shri Manmohan Singh brought the same in a necklace for refraining them and that Virender Singh accepted these pieces because these were part of an ornament for getting them refrained by an artisan. On behalf of the firm M/s. Lamba Jewellers he submitted that they were in no way concerned either with the seized two Kruggrrands or the contents of the documents. In reply, Shri Ghauri supported the impugned order. 6. After giving our due consideration to the arguments so advanced we find no force in the arguments of the learned counsel for the appellants that the contents of the documents were only rough notes of the proposed transaction which might or might not have happened in fact or it has not been established as to what point of time these entries relate. From the documents, the photo c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... render Singh and not from the firm, (iv) that the personal searches of all the other partners were also conducted and as a result nothing was recovered from the other partners of the firm, namely, Sardar Manmohan Singh Lamba and Sardar Parambir Singh Lamba, (v) that the other partners of the firm, namely, Sardar Manmohan Singh Lamba and Sardar Parambir Singh Lamba were also served with the Show Cause Notices and ultimately were found not guilty. Hence exonerated by the Adjudicating Authority, (vi) that there is nothing on record to show that the firm was in any way concerned with the said affairs of the appellant Virender Singh. On the other hand, submits the counsel, that in his first statement on the spot Virender Singh clearly stated that the two Kruggrrands in question were given by the other appellant Manmohan Singh for framing in his personal capacity and that the firm or the other partners are in no way concerned with the said acquisition of two Kruggrrands and the papers or the other documents recovered, and (vii) that the said documents or the note book does not bear the name of the firm anywhere. 8. After hearing both the parties we are of the view that the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which renders the gold liable to confiscation. As held earlier, we find no evidence on record to show that the firm has contravened the provisions of Gold (Control) Act. The Department has not led even iota of evidence against the firm. In the result in the absence of any evidence on record showing the firm guilty of any act or omission and in the absence of charge of abetment, we find no justification for holding the appellant firm guilty for the act of Virender Singh. The exoneration of the other partners of the firm namely, S/Shri Manmohan Singh Lamba and Parambir Singh Lamba by the Adjudicating Authority itself also lends assurance to our said conclusion as the exoneration of the said partners itself proves that for the act of one partner, that is to say, Virender Singh, the other said partners were not held guilty and therefore the firm cannot also be held guilty. However, we should not be misunderstood as laying down that the firm and its partner cannot both be adjudged guilty to contravention or be subjected to a penalty under the provisions of the Act. It is possible to find the firm guilty of an act or ommission which renders the gold liable to confiscation and at the same ..... 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