Decided on September 04,1986



S.Kalyanam, - (1.)SINCE the above appeals arise out of a common order and arc inter-connected and relate to a single transaction, they are taken up together and disposed of by a common order.
(2.)The appeals are directed against the Order of the Collector of Central Excise, Cochin, dated 4.4.1986 imposing a fine of Rs. 25,000/- on appellants M/s. Swaminathan & Sons in lieu of confiscation of gold coins and ornaments weighing 367 grms. under Section 73 besides a penalty of Rs. 15,000/- on appellant M/s. Swaminathan & Sons, Rs. 10,000 each on appellants Selvarajan and Ramanujam under Section 74 of the Gold (Control) Act, 1968, hereinafter referred to as the Act.
Appellant Nos. 4 to 13 [Appeal Nos. G/93/86 (MAS) to G/l02/86 (MAS)] are the claimants of the gold under seizure. On 20.9.1982 at about 3.00 P.M., the Supreintendent of Central Excise, Quilon and party visited M/s. Swaminathan & Sons, Main Road, Quilon and inspected the accounts of the shop. The authorities found that accounts were written only upto 18.9.1982. The authorities also found two paper packets in a secret cavity below the bottom of the show case adjacent to the cash counter, hidden by a wooden lid and the paper packets were found to contain gold ornaments and gold coins totally weighing 367 grms. Since the gold coins and ornaments were not accounted for in the statutory accounts, they were seized by the authorities under mahazar as per law. Appellants Selvarajan and Ramanujam gave a statement before the authorities on 20.9.1982 that the gold coins and ornaments were not accounted for. It is in these circumstances after further investigations, proceedings were instituted against the appellants which ultimately culminated in the present impugned order, now appealed against.

(3.)SHRI Santhanagopalan, the learned counsel for the appellants submits that no licence has been granted under the Act in favour of any firm under the name and style M/s. Swaminathan & Sons and merely because a licence was issued in the joint names of appellants Selvarajan and Ramanujam and the said two persons are jointly doing business, that would not under law create a firm within the meaning of Section 2(h) of the Act. It was further urged that the main charge against the licensed dealer namely, appellants Selvarajan and Ramanujam is in respect of contravention of Section 55. The learned counsel contended that the gold coins and ornaments under seizure were indisputably entrusted with the licensed gold dealer only for the purpose of repair and not for the purpose of re-making and so the question of making any entry in Form GS 11 or GS 12 in terms of Rule 11 of the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968 would not arise. Dilating on this plea, the learned counsel further submitted that Section 55 enjoins on a dealer to maintain true and complete accounts of the gold owned, possessed, held or controlled by him and such a licensed dealer shall keep the same only in such form and in such manner prescribed under Section 55 of the Act. It was urged that under Rule 11, the accounts of gold referred to in Section 55 shall be kept by a licensed dealer in Form GS 11 or GS 12. In respect of the gold coins and ornaments under seizure, it was urged that there is no column at all either in GS 11 or GS 12 form for a licensed dealer to make any entry therein and so the charge of contravention of Section 55 is not legally sustainable in the facts and circumstances of this case.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.