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TMI Blog1987 (5) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... Gayens were engaged in the business of goldsmithy and held a licence for this purpose issued under the Gold Control Act. 3. On 4th March, 1978 there was a search by the Gold Control Authority and gold and gold ornaments were seized by the Gold Control Officers on the allegation that the provisions of the Gold Control Act had been violated. Proceedings for imposition of penalty and confiscation of the gold that was seized was initiated by the Gold Control Officers against Debendra Nath Gayen, Tarak Nath Gayen and Niranjan Gayen. No proceeding was taken against Mrigendra Nath Gayen who was the head of the joint family. Mrigendra Nath Gayen died on 19-12-1982 after the adjudication proceedings pursuant to the seizure case was decided. Debendr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of gold and gold ornaments valued at Rs. 2,38,568/-. 5. This according to the show cause notice constituted violation of Section 55 of the Gold Control Act, 1968 read with Rule 11(c) of Gold Control (Forms, Fees and Misc. Matters) Rules, 1968. The period during which violation took place was alleged to be 1381 B.S. to 1384 B.S. 6. The second allegation was that Tarak Nath Gayen, Niranjan Gayen and Debendra Nath Gayen had bought the aforesaid primary gold, gold ornaments and gold sovereigns etc. during the period 1381 B.S. to 1384 B.S. in violation of Section 41(b) of the Gold Control Act, 1968. 7. The third allegation was that Tarak Nath Gayen, Niranjan Gayen and Debendra Nath Gayen had commenced or carried on business as dealer in gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-1980, held that - "In view of what has been stated above I, hold that the theory of seized gold and gold ornament and gold articles belonging to the various customers and the family members is an afterthought and baseless. Since the unauthorised transactions entered in the private account books do not appear in the G.S. 13 it is obvious that the parties are dealing as a dealer. As such charges levelled against the parties in the show cause notices are conclusively proved I, therefore, order confiscation of the gold and gold ornaments and gold articles valued at Rs. 44,278.00. So far as the primary gold is concerned I order absolute confiscation of the same. However, in respect of the gold ornaments and articles, I allow the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anjan Gayen, given on the date of seizure, is of crucial importance. The admission as made therein, is further corroborated by the submission made during the personal hearing before the Collector and clearly indicates that the appellants were fully and clearly responsible for violation of Section 55 of the Gold Control Act. That the fact Shri Mrigendra Nath Gayen and Shri Debendra Nath Gayen are no longer alive, does not in any way alter and/or affect the seriousness of the share of responsibilities of the three appellants in the eyes of law. Therefore, we consider that they have been rightly held as liable to penalty. However, looking into the facts and circumstances as a whole including the joint liabilities and responsibilities of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gayen. That will amount to punishing the legal representatives. This is not a case where a debt has come into existence as a result of the order imposing penalty. The object of imposing penalty was to penalise Debendra Nath Gayen. That object will not be achieved by realising the amount of penalty from the assets left behind by Debendra Nath Gayen. 16. My attention was drawn to an order passed by the Government of India in the case of Nainy Glass Works Private Limited, Nainy, 1982 E.L.T. 644 where the view was expressed that there was no question of recovery of penalty if the person concerned had passed away before the recovery of the penalty. 17. Therefore, even if the order imposing penalty is sustained, the amount of penalty imposed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am of the view that the Tribunal has taken a correct decision in this case. That the business was being jointly run by Mrigendra Nath Gayen, Debendra Nath Gayen, Tarak Nath Gayen and Niranjan Gayen cannot be denied. The fact that the accounts have not been properly maintained for the years 1381 B.S. to 1384 B.S. cannot also be denied. It is not the case of Tarak Nath Gayen and Niranjan Gayen that they were not responsible for the maintenance of the accounts. As licensed goldsmiths they had to maintain accounts in accordance with law. Therefore, taking an overall view of the matter, 1 am disinclined to interfere with this aspect of the order of the Tribunal especially in view of the fact that the quantum of penalty has been reduced by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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