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TMI Blog1988 (3) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank Locker standing in the name of the appellant and his wife Smt. Gita devi and seized gold ornaments weighing 1309.000 gms. valued at Rs. 1,50,000/- for non-declaration by the appellant who was the partner of a firm having Gold Dealer s Licence. The investigation disclosed that the seized gold was claimed by Smt. Gitadevi as her Streedhana property and that she had made declaration along with the other gold belonging to her to the Gold Control Officers at Calcutta. The appellant admitted that he did not make any declaration in respect of the gold ornaments seized. He, however, stated that they belong to his wife and he admitted that the bank locker stood in the joint name of his wife and himself. 3. The Collector of Customs (P), who he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration in respect of the gold ornaments which were found in the locker which stood in the joint name of the appellant and his wife. Shri Prabhu further submitted that the appellant has been doing gold dealers business in Bombay and therefore he was required to make the declaration in Bombay. The declaration made at Calcutta, will be of no avail to the appellant. Shri Prabhu further referred to the appellant s own admission as to the non-declaration and requesting the department to take a lenient view of the matter. Shri Prabhu contended that the Collector was justified in taking into consideration the definition of the family and he prayed that the appeal may be rejected. 6. I have carefully considered the submissions made on both the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons; and by any other person; is set out in sub-section 2 of Section 16 of the Act. In the case of gold articles or ornaments or both owned, possessed, held or controlled by a Hindu undivided family the declaration is required to be made by the head or karta of such family. For the purpose of Section 16 the expression family is defined as under :- "for the purpose of this section, family shall be deemed to consist of: (i) the husband, wife and one or more minor children, or (ii) any two or more of them, but shall not be deemed to include any other person. Sub-section 7 of Section 16 which was the basis for the Collector to order confiscation of the gold reads: Every licensed dealer or refiner shall make a declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord a finding that the gold did not belong to Smt. Gitadevi. He also did not record a finding that was not her streedhana property. He accepted her declaration and this is clear from the following observations of the Collector: Looking to the facts and circumstances of the case namely that this is more of a technical lapse of not filing the declaration before the Gold Control authorities, and that a declaration appears to have been filed before the Gold Control authorities at Calcutta, I take a lenient view". 9. The obligation to file a declaration by the appellant in respect of the seized gold arises: (i) if the department is able to establish that the seized gold is the appellant s own gold or that it belongs to the joint family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo minor children. Since wife is a part of the family of Gaurishankar A. Jalan, who is a licensed gold dealer in Bombay, it was necessary for Gaurishankar to have filed a declaration before the Gold Control authorities at Bombay . The reason given by the Collector appears to be that wife is a part of the family of the appellant and therefore the appellant is required to make a declaration. It is not the case of the department that the appellant owned, possessed, held or controlled the seized gold and therefore he was required to make a declaration. The law does not make it obligatory for the husband to make declaration of the gold owned, possessed, held or controlled by his wife in her individual capacity; as in this case as streedhana pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not only claimed ownership of the gold but had produced proof before the authorities that she had made a declaration in respect of the seized gold in Form G.S. 6 as early as on 31-1-1976 before the Gold Control authorities Calcutta. Her claim of ownership and her further claim that it was a streedhana property was not controverted. Since the locker stood in the joint name of the appellant and his wife and therefore it could be said that the appellant had control over gold but the Collector did not record such a finding. But then, from the other facts such as the appellant s wife possessing the key of the locker and her statement that she was operating the locker indicate that it was for easy operation the locker was opened in the joint n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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