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TMI Blog2000 (1) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... e Allahabad High Court in criminal revision No. 1756/80 ? Whether the Tribunal erred in imposing the penalty under section 74 of the Gold (Control) Act, 1968 in the absence of any gold being seized and on the basis of the accounts only ?" 2.We have heard Sri V.K. Goel, learned counsel for the applicant at whose instance this reference has been made and Sri Surya Prakash, learned Standing Counsel for the respondent. 3. The facts of the case are that on 12-10-1974 the Central Excise Department, Income Tax Department and the local police jointly raided the residential premises of Shri Chandra Prakash and his son Lalit Kumar the present applicant. The two are father and son respectively. At the time of the search only Shri Chandra Prakash wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was a gold dealer and that the accounts books revealed entries of unauthorized acquisition of 669.125 grams of primary gold and 23,337.935 grams of old gold ornaments and 24,347.990 grams of new gold ornaments. The Collector of Central Excise, therefore, imposed a penalty of Rs. One lac. On appeal, the Tribunal upheld the contravention of the provisions of the Act but reduced the penalty to Rs. 50,000/-. It is on these facts that the aforesaid two questions have been referred. It may be mentioned that at the time of the search no gold or ornaments were actually recovered from the possession of either of the two persons. 5. The contention of the learned counsel for the applicant Lalit Kumar was that the applicant was prosecuted for the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t held that the accused having been acquitted in the prosecution launched for the offence under Section 19(f) of the Arms Act, evidence of recovery of the said firearm could not be used against him at the trial for murder. Reliance is also placed on Manipur Administration v. Thokchom Bira Singh, A.I.R. 1965 S.C. 87 in which the aforesaid judgment was relied upon and affirmed by a Bench of five Judges of the Hon'ble Supreme Court explaining the Rule of issue estoppel in a criminal trial. The Hon'ble Supreme Court held that the Rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent Court at a previous trial and that Section 403 of the Code of Criminal Procedure, 1898 does not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue in nature and, therefore, Article 20 of the Constitution of India does not apply to them. In V. Datchinamurthy v. Asstt. Director of Inspection - (1984) 149 I.T.R. 341 the question was whether decrees passed by a Civil Court on the basis of promissory notes were binding on the assessing officer while making the assessment of the person against whom the said decrees were passed. The Hon'ble Madras High Court held that while the civil court adjudicated on the claim of the alleged depositors based on the promissory notes executed in their favour, the investigations and enquiry by the ITO was to find out the persons to whom the money really belonged. It also observed that the ITO had exclusive jurisdiction to go into the question as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view that the proceedings before the adjudicating authority under the Act were of a different nature than the Criminal prosecution proceedings and the adjudicating authority was a forum of exclusive jurisdiction under the Act and, therefore, the adjudicating authority and the Tribunal could arrive at their own conclusion on the material available before them and they could arrive at different findings and the judgment of the Allahabad High Court in criminal revision No. 1756/80 did not operate as res judicata nor the adjudicating authority and the Tribunal were estopped from finding the facts for themselves. We, therefore, decide question No. 1 accordingly. 9. As regards, question No. 2 the contention of the learned counsel for the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceeding one thousand rupees, for every such contravention, failure or abetment, as the case may be." 11. This contention is beyond the scope of the question that the Tribunal has referred for the decision of this Court. The judgment of the Tribunal also shows that it was not the case of the applicant that penalty should have been levied under Section 75 of the Act. In any case, the allegation against the applicant was that he was carrying on business in gold without a licence. Recovery of gold could have been only a circumstance to show that he was dealing in gold. In this case, no gold was recovered but from the books of account and other material including the Appellate's own statement it was established that the applicant was carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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