9911796707
TMI Blog1985 (1) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... entire stock of gold weighing about 2359.050 grams, was seized on the ground that the business in gold by the Appellant was unauthorised and appropriate entries in regard to a quantity of 134.320 gms. of gold ornaments were not made in the statutory accounts; (e) in a notice, dated 28-5-1976, requiring the Appellant to show cause as to why the seized ornaments should not be confiscated under S. 71 and a penalty imposed under S. 74 of the Act, it was alleged, inter alia, that - (i) the business was that of a sole proprietary concern till 1-4-1965 and no approval was obtained on a change in its constitution and induction of four persons as partners. The business was conducted with an invalid licence between 1-4-1965 and 4-4-1975; (ii) the G.S. 12 register disclosed a balance of 2756.130 gms, whereas, on physical verification, a less quantity of gold only 2359.050 gms was found; (iii) about eight issue vouchers were not entered in the G.S. 12 register; (iv) accordingly, the Appellant had contravened the provisions of S. 27 of the Act, read with the rules of the Gold Control (Forms, Fees, etc.) Rules, 1968, (the Rules, for short) and S. 55 of the Act; [Pp. 52-53 of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.F. that could be deemed to have been issued under the Act; (iii) the change in the constitution of the Appellant could not be saved in terms of S. 116(2) of the Act, being inconsistent with the provisions thereof. Accordingly, after 1-9-1968, when the Act came into force, the licence with the change in the constitution of the firm could not be deemed to be issued or continued under the Act; (iv) the Appellant, as a partnership firm, had been dealing, therefore, on an invalid licence right from 1-9-1968; (v) consequently, the ornaments seized are liable to be confiscated and the Appellant liable to be penalised; (vi) nevertheless, the licence may be permitted to be duly amended from the date of the Adjudication Order in the name and style of a partnership firm with a view to obviate the stoppage of business altogether; (vii) in the view he had taken, the charge under S. 55 of the Act for the discrepancies in the G.S. 12 register did not survive, because it is only a licensed dealer that is obliged to keep and maintain the register. Accordingly, a penalty of ₹ 2,000 was levied on the Appellant for breach of S. 27 of the Act and the ornaments seized were allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally accounted for in the register. In such a case, the excess gold is the gold in respect of which there has been a contravention and, accordingly, it could be confiscated, subject to the other requirements of the provision and S. 79. But whereas in this case, there is a deficit, there can be no order of confiscation in regard to the deficit gold in absentia [Reliance on AIR 1976 All. 35 - Kashinath v. Collector of Central Excise]. 3. After the hearing of the case was concluded, the case was reopened with a view to satisfy ourselves as to the manner in which the Appellant was described in the applications for renewal of licence from time to time after the change in the constitution of the Appellant in 1965. Shri Anand for the Respondent, produced the original applications for renewal for the years 1970, 1972-1983 (13 in all) and filed the photocopies thereof in one set before us as per our direction. A perusal of the said original applications for renewal disclose that - (a) in the application for renewal for the year ending 31-12-1970, the firm was described as M/s. Ganpatlal Kishanlal. The applicant s name was Johri Kishanlal described as partner and son of Ganpatlal. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibits business as a dealer without a valid licence; (iv) if, therefore, the Appellant was carrying on a business as a dealer without a valid licence, he contravenes S. 27 of the Act and the gold in respect of which the said provision was contravened was the entire stock in trade rather than merely the gold which fell short on physical verification. It may be that confiscation of the entire gold, or any gold for that matter, in the facts of the ease, cannot, in terms of S. 71 of the Act, sustain in so far as the contravention of S. 55 is concerned and that was why the charge of violation of S. 55 was also dropped. Confiscation of gold for contravention of S. 27 stands on a different footing. It is in respect of the stock in trade that S. 27 had been contravened, if at all, (b) the crucial issue is, therefore, not the violation of S. 55 of the Act, but the contravention of S. 27 and the Rules; (c) indisputably, (i) the licence that was granted in 1963 in terms of R. 126E of the Defence of India Rules (P. 49 of the Paper Book) was in the name and style of Sarvashri Ganpatlal Kishanlal . The word Shri before Sarvashri was scored out. There was no description of the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pages 17 and 51 of the Paper Book] and the partnership deed adverted to therein, the Appellant could be only a H.U.F. till the advent of the partnership; (iv) description of the partners as sons of Ganpatlal in the aforesaid letter - the erstwhile coparceners in the H.U.F. - negates the induction of strangers into the partnership; (v) the request for amendment of the licence so as to include the names of the partners either went unheeded or was thought unnecessary because the existing licence could comprehend a partnership as well or there is no provision for the inclusion by amendment of the names of the partners; (vi) by and large, the applications for renewal were always signed by one of the partners describing himself to be such and the names of the other partners were also furnished; (vii) if, therefore, despite all this, the renewal for the licences was effected from the year 1969 onwards, as would appear from a duplicate copy of the licence in the name of sole proprietor Shri Kishanlal, could it be said that the Appellant was at fault ? The entries in the duplicate licence, as already stated, were incorrect as can be found on comparison with the original licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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