9911796707
TMI Blog1990 (4) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... ents and gave the option to the applicants to redeem the same on payment of a redemption fine of Rs. 15,000/- in lieu of confiscation. The Tribunal also confirmed the penalty imposed under the Gold (Control) Act on the applicants. The present application for rectification of error has been made with reference to this portion of the order of the Tribunal. The prayer in the rectification application is that the Tribunal should rectify the mistake apparent on the face of the record by ordering the release of ornaments weighing 254 gms and 438.300 gms which were received from gold dealers of Bangalore and Amritsar respectively both being covered under the consignor s sale/issue vouchers in the light of the judgment of the Allahabad High Court in the case of CCE, Allahabad v. Lala Kashi Nath Jewellers, Para 18 thereof reported in AIR 1972 All. 231 at page 236 to 237. It is also prayed that the Tribunal should adjudge afresh redemption fine in lieu of confiscation of ornaments weighing 13 gms and Suhan weighing 20 gms. The further prayer is that the Tribunal should grant proper consequential relief of refund of Rs. 1000/- redemption fine already paid on ornaments weighing 254.0 gms after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts held that a perusal of the statement given by Shri Karam Chand, Accountant of the appellants firm M/s. Popular Jewellers in cross-examination shows that the Accountant was maintaining only cash books and cash ledgers for the party and not gold control records and this very fact was corroborated by Shri Narinder Mohan Jain appellant in his statement dated 8-11-1978 in which he stated that the statutory gold records in forms G.S. 11 and G.S. 12 and the entries in the Sale and Purchase Books were always maintained by him or his brother Rajinder Kumar. Further the Adjudicating Authority has also found that the appellants had not issued purchase voucher/receipt voucher in respect of the said three consignments, an obligation enjoined upon them under the Act. The Adjudicating Authority has also concluded that the fact that the gold jewellery received from one customer of Churu, that is to say Shri Bachhawat, was put to process without entering the same in the gold control registers or in the receipt/purchase vouchers further reinforces the conclusion that the deal was not genuine. He further lends assurance to this conclusion by observing that the failure by the defence to explain as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that in the instant case also the learned Collector of Central Excise, New Delhi as well as the Tribunal inadvertently passed orders with regard to the gold ornaments received from licensed gold dealers of Bangalore as well as Amritsar under valid vouchers issued by the consignors, omitting to consider the applicability of Para 18 of the Allahabad High Court judgment in the case of Collector of Central Excise, Allahabad v. L. Kashinath Jewellers - AIR 1972 All. 231, although specific reference was made to the said Para 18 before the learned Collector of Central Excise in adjudication proceedings, as well as before this Tribunal in the grounds of appeal. The learned counsel pointed out that in spite of the fact that both these transactions were established to be genuine as per the investigation reports received from the Customs Authorities of Bangalore and Amritsar in response to the enquiries made through them by the Asstt. Collector, New Delhi, the learned Collector of Central Excise, New Delhi confiscated both these consignments. The Collector ordered confiscation of ornaments weighing 254 gms received from Bangalore with an option to redeem the same on payment of Rs. 1,000/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in statutory records because the only partner present in the shop was busy who would have made receipt entries in his accounts before closing the shop. The gold ornaments were also received in the shop on 7-11-1978 in the afternoon and in the evening officers had visited the premises for search and seizure. The learned counsel further relied upon the case of Asstt. Collector of Central Excise v. C.D. George, 1988 (16) ECR 340 (Kerala) wherein the Kerala High Court held that gold received the same day and to be entered into accounts of the day cannot be proceeded against. In the circumstances, it was earnestly pleaded by the learned counsel that the rectification of the apparent error as prayed for should be ordered. 4. Smt. Dolly Saxena, learned SDR furnished the enquiry report regarding the two vouchers which were required for perusal by the Bench and submitted that the vouchers on enquiry at the source with the Central Excise authorities at Bangalore and Amritsar had been found to be genuine. Further she contended that the present application, in Department s view, is in effect for reopening of the case and for modification of the findings already given by the Tribunal in rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he vouchers produced were not genuine. We have subsequently also seen the verification report from the Central Excise authorities in response to queries from the Delhi Collectorate which shows that the vouchers were genuine and hence transaction relating to two quantities of gold has to be accepted as having been satisfactorily established. In this context, a perusal of the Tribunal s finding at Para 9 of its Order-in-Appeal extracted supra would show that there is no specific observation by the Tribunal on this aspect in terms and in the light of the ratio of the Allahabad High Court judgment relied upon by the appellants. Had this been properly focused before the Tribunal it was possible that such omission would not have occurred, which, in our view, was important, because of the decision to confirm the order of confiscation of the gold ornaments in this case. Further, as has been brought out in the counsel s arguments, in such a case where there is a clear omission on the part of the Tribunal to consider the contentions on certain aspects of the case before it, rectification thereof would not amount to review of its own order, and, on the other hand, such rectification would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 All. 231 at Para 18 thereof to the effect that where ornaments received by a dealer are covered by valid vouchers, mere failure to enter the receipt immediately in the statutory dealer s accounts should not attract penal provision of confiscation. We also in coming to this view bear in mind the circumstances that these two quantities of ornaments have been received covered under valid vouchers in the afternoon of 7-11-1978 whereas the seizure took place the same evening, and hence the ratio of the decision of High Court would apply to the facts of this case. In the circumstances, in rectification of the Order No. cited above, we order that the confiscation of 254 gms and 438.300 gms of gold ornaments be set aside. At the same time in respect of the quantity of ornaments weighing 13 gms and Suhan weighing 20 gms (total 33 gms) the order of confiscation is maintained for the reasons already stated in Para 9 of the order dated 31-12-1986. However, the option to release that quantity on payment of fine in lieu of confiscation is maintained and the fine in lieu of the confiscation in respect of this quantity, namely, 33 gms as stated above is fixed at Rs. 5,000/- (Rupees Five Thousand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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