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TMI Blog1985 (3) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... be heard along with the appeal. 3. In reply Shri B. Bhowmik, the learned JDR has stated that he has got no objection if the cross objection is also heard along with the appeal and Shri N.C. Sen, the learned Advocate has also stated that he has got no objection if the cross objection is heard. Accordingly, the cross objection is also being heard. 4. Briefly the facts of the case are that on the basis of an information, a batch of Gold Cell Officers, Calcutta, headed by the Superintendent, Gold Cell, Calcutta, searched the shop-cum-working premises of Shri Ganesh Chandra Golui at Bargachia Bazar P.O. Bargachia, Dist. Howrah, on the strength of a search authorisation issued by the competent authority. On verification of physical stock of his gold ornaments with reference to his book balance in the statutory Books of Accounts, the said officers found in excess a quantity of 823.000 grms gold (gross) or 375.000 grms (net) of assorted new gold ornaments mostly multiple in number of same type and design over the book balance. The appellant could not adduce any evidence documentary or otherwise in support of his acquisition or possession of the same. The gold ornaments weighing 823.000 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had stated that he carried out his business as goldsmith and had not crossed the limit of his business as provided under the law. The appellant has also denied to have made any purchase or sale of primary gold as stated in the show cause notice. The appellant has contended that he was an illiterate person and he used to enter these receipts in kacha note-book of account and then with the help of other person entered the same in G.S. 13 Register and the gold ornaments in question weighing 823.00 grm. under seizure, were received by him from different customers and their names were in his note-book for final entry in the statutory , record. The appellant disputed that the gold ornaments under seizure were not fully entered in G.S. 13 Register. He also denied the charges framed under the show cause notice. It was also contended before the adjudicating authority that the appellant used to visit various places from morning till evening and procure the orders from various customers and collect old gold ornaments. He used to return back in the evening to the shop. Thereafter he used to note down the various orders booked by him during the course of a day and record in his pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book of account containing 378 pages were also seized. He has referred to page 50 of the paper book which is the statement of the appellant and was recorded on 3rd August, 1979. He has pleaded that summons were issued to the appellant and on 24th August, 1979, another statement of the appellant was recorded which is at page 46 of the paper book. He has submitted that in the statement recorded on 24th August, 1979, the appellant had duly stated that the price of the gold ornaments was just noted for creating confidence among the customers and in the statement, the appellant had duly mentioned that due to ignorance, he had delivered some ornaments which could be quickly made, without recording in the G.S. 13 Register. He is a rustic. He does not know proper accounting system and it is always (not) possible for him to write G.S. 13 register. He has also stated that certain transactions were recorded in the account book as well as in the G.S. 13 register too and the appellant had made a request that the Panama note-book may be treated as G.S. 13 Register. The learned advocate has referred to the show cause notice dated 12th December, 1979 which appears at page 38 of the paper book and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the facts properly. He has pleaded that in the last para of the order, the learned Collector of Central Excise has referred that there is no evidence on record that the appellant had melted gold with foreign markings. He has laid special emphasis on the following extracts from the operative portion of the order. "Further, in view of the fact that substantial quantity of gold has been obtained from unauthorised sources and after converting the same into new ornaments, Shri Golui has sold the same to various customers, a deterrent punishment is necessary to check such unauthorised transactions in foreign marked gold obtained from unauthorised sources which is melted immediately for the purpose of making new gold ornaments, I impose penalty of ₹ 2 lakhs (Rupees two lakhs only) on Shri Ganesh Chandra Golui for contravention of the various provisions of the Gold (Control) Act, 1968." The learned advocate has referred to the judgment of the Hon'ble Supreme Court in the case of J.A. Naidu v. State of Maharashtra reported in 1983 E.L.T. 611 (S.C.) wherein the Hon'ble Supreme Court had held that it was for the prosecution to prove affirmatively that the contraband articles were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply, Shri Sen, the learned advocate has referred to the judgment of the Hon'ble High Court in the case of K.K. Goenka v. Superintendent of Customs, Preventive reported in 1978 E.L.T. (J637) wherein it was held that "under Section 108 of the Customs Act, the authorities have no right to compel any person to give evidence against himself because this provision is subject to constitutional bar as contained in article 20(3). Therefore, any person can at all time during the enquiry by the Customs Authority, decline to answer to any question which may incriminate him." The learned advocate has also again pleaded that there is no evidence that there was foreign gold and the finding of the learned Collector is without any basis. He has pleaded for the acceptance of the appeal. 8. After hearing both the sides and going through the facts and circumstances of the case, I would like to observe that the maintenance of the G.S. 13 Register is a mandatory requirement. Non-maintenance of the same will defeat the provisions of the Gold (Control) Act, 1968. Private 'Panama' book maintained by the appellant, cannot be treated as a substitute for the G.S. 13 Register. Undoubtedly, the 'Panama' book w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in awarding punishment or in releasing an offender on probation in lieu of sentencing him forthwith. It was so held by the Hon'ble Supreme Court in the case of Arvind Mohan Sinha v. Amulya Kumar Biswas reported in AIR 1974 Supreme Court 1818. The relevant extract from para No. 10 of the said judgment is reproduced as under : "10. We are unable to accept the appellant's contention that the Probation of Offenders Act can have no application to offences consisting of the contravention of Customs Act or the Gold Control Rules contained in Part XII-A of the Defence of India Rules, 1962. True, that these offences are fundamentally of a different genre and are calculated to involve consequences of a far-reaching character as compared with offences under the general law of crimes. These are mostly economic offences which in conceivable cases may pose a grave threat to the economy and the security of the country. But every contravention of the Customs Act or the Gold Control Rules cannot, without more, be assumed to be fraught with consequences of national dimension. The broad principle that punishment must be proportioned to the offence is or ought to be of universal application save w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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