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TMI Blog1989 (11) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... trol Act. (3) Whether filing of cross-objection under Section 81(5) is obligatory as per the Gold Control Act. (4) Whether the Collector had the powers to file cross-objection against the orders of the Collector (Adjudication) in favour of the party, without getting the orders of the said Gold Control Administrator under Section 82(1). (5) Whether the Tribunal was right in accepting the plea by the advocate of the party that in absence of availing the opportunity to file cross objection, the finding of the Collector in the order appealed against (which are in favour of the party), have become final. 2. In order to appreciate the aforesaid questions, facts of this case, which has a somewhat chequered history, need to be set out, which are as follows :- 2.1. On 3-4-1986 while the Gold Preventive Officers were checking the stock of gold of M/s. Nathu Mal and Sons Jewellers, they found one person allegedly moving in a suspicious manner in front of the shop. On being asked the said person disclosed his identity as Laxmi Narayan Sharma (L.N. Sharma), salesman of M/s. Prem Jewellers. As a result of search of his bag 165 pieces of new gold ornaments weighing 1863.100 gms. of 22 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons). = 4388.740 gms. Total recorded balance, therefore, should have been 4388.740 gms. As against the above, 2527.000 gms. gold ornaments of 22 cts. were physically found in the shop of M/s. Prem Jewellers plus 1863.100 gms. seized from Shri L.N. Sharma, the salesman of M/s, Prem Jewellers outside the shop of M/s. Nathu Mal Sons. Total of this entire stock comes to 4390.100 gms." 2.4 Learned adjudicating authority in view of the aforesaid Explanation of the appellant M/s. Prem Jewellers and on the basis of the fact that the vouchers issued by M/s. Pishori Lal Sons and M/s. Pindi Jewellers were found to be correct on verification did not find the seized gold as liable to confiscation. The said authority, however, held that Shri L.N. Sharma of M/s. Prem Jewellers contravened the provisions of Rules 11 and 13 of Gold Control (Forms, Fees and Misc. Matters) Rules, 1968 and Section 55 of the Gold Control Act, 1968 (GCA 1968) for non-maintenance of prescribed records and documents. The said authority, therefore, keeping in view the mitigating circumstances that the appellant firm had left their registers and voucher books at the premises of M/s. Krishna Jewellers for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that the imposition of penalty under Section 74 of the Act was not justifiable on the basis of the finding of the adjudicating authority himself. Penalty under the said Section, according to him, could be imposed upon a person if he in relation to any gold did or omitted to do any act which act or omission would render such gold liable to confiscation under the Act or abetted the doing of such omission or an act. In the instant case emphasised the learned advocate that the gold had been found not liable to confiscation and therefore, it followed that the appellant therein M/s. Prem Jewellers had not committed any act or omitted to do any act which rendered the gold liable to confiscation. 4.1 Tribunal s findings, having regard to the various pleas of the learned advocate and the final judgment in the said appeal No. G/2/88-NRB in its order No. A/167/88- NRB dated 27-6-1988 are quoted below :- I have carefully considered the pleas advanced on both sides and I find substantial force in some of the pleas of the learned advocate for the appellant. It has been found as a fact by the adjudicating authority in the impugned order that the registers and records were lying with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such points arising out of such order of the adjudicating authority as may be specified by the Administrator in his order. It is appropriate to give the relevant extracts from the order dated 11-8-1988 of the Administrator :- The brief facts of the case are that Gold Preventive Officers of Delhi Central Excise Collectorate visited M/s. Prem Jewellers, Karol Bagh, New Delhi on 3-4-1986 and found shortage of new gold ornaments weighing 798.240 gms. On examination of the said order I find that the order passed by the Collector is not a proper order due to the following reasons:- The Gold Control Act, 1968, is primarily based on the accountability of stock. It does not involve payment of duty. Non-maintenance of accounts as statutory requirements should not be viewed leniently for contravention of Section 55 of the Gold Control Act, 1968 read with rules 11 and 13 of the Gold Control (Forms, Fess Misc. Matters) Rules, 1968. The offence committed by the party does not appear to be of a technical nature. In such cases, where there is deliberate commission or offence of this type, heavy fine and penalty, is warranted so as to deter the dealers from repeating such offence. I, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which culminated in the Tribunal s order dated 26-7-1988. Even at the time of hearing of the appeal a similar objection had been raised by the learned SDR for proceeding with the hearing on the ground that the department had taken up the question of review of the Collector s order with the Gold Control Administrator insofar as the release of the gold without confiscation thereof had been ordered by the Collector (Adjudication). The learned advocate for the appellants then (respondents now) opposed the prayer of the learned SDR and had stated that the Collector of Central Excise having been given due notice by the Registry of the Tribunal regarding the appeal filed before the Tribunal had not been chosen to file any cross-objections. Accordingly, this prayer at the time of hearing from the learned SDR could not be acceded to. The Tribunal had accepted the plea of the advocate for the appellants then and respondents now. This finds reference in paras 3 and 4 of the Tribunal s order No. A/167/88-NRB dated 27-6-1988. Accordingly, I allow the misc. application No. 474/88-NRB and consequently the application (to be deemed an appeal) filed by the department is liable to be rejected as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... line to answer a question arising out of the order of the Tribunal if it is unnecessary or irrelevant or is not calculated to dispose of the real issue between the tax payer and the department. 11. I have carefully considered the pleas advanced on both sides. I am unable to agree with the learned advocate for the non-applicant M/s. Prem Jewellers that the questions, even though, of law and arising out of the Tribunal s order, should not be referred to the High Court merely because the answer to these questions is not going to effect the final outcome of the Tribunal s order regarding imposition of penalty on the non-applicant M/s. Prem Jewellers. From a reading of the aforesaid observations of the Hon ble Supreme Court I feel that that is a discretion vested in the High Court. So far as the Tribunal is concerned it is bound to refer any question of law that arises out of its order; there is no discretion in the Tribunal not to refer any such question in terms of Section 82B of the GCA, 1968. 12. Examining now the questions of law raised in the reference application I find that all the questions raised by the applicant are of law arising out of the Tribunal s order. Hence all t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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