M PUKHRAJ SOWCAR Vs. COLLECTOR OF CENTRAL EXCISE
LAWS(CE)-1986-5-8
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on May 29,1986

Appellant
VERSUS
Respondents

JUDGEMENT

S. Kalyanam, Member (J) - (1.)THE appeal filed before the Gold Control Administrator by the appellant herein against the order of the Collector of Central Excise, Madras, referred to supra, imposing a fine of Rs. 2 lakhs in lieu of confiscation of gold and gold ornaments weighing 2820 gms. under Section 73 besides a penalty of Rs. 50,000/- on the appellant under Section 74 of the Gold (Control) Act, 1968, hereinafter referred to as the Act, stands transferred to the Tribunal in terms of Section 82K of the Act for being disposed of as if it were an appeal.
(2.)The appellant is a pawn broker and on 28.10.1980, the Preventive Officers of the Central Excise, conducted a search of the appellant's residence as well as his pawn broking premises. The authorities found gold and gold ornaments wrapped in paper and kept secreted amidst the pawned brass vessels and tiffin boxes in the rear room of the shop and they were also not accounted in the accounts maintained by the appellant. It is in these circumstances 2771 gms. of gold and gold ornaments recovered from the appellant's shop and 49 gms. of primary gold from the residence of the appellant were seized under mahazar as per law attested by witnesses. The details of ornaments seized with their purity have been detailed in the original order of adjudication. The appellant gave a statement before the authorities on 28.10.1980 to the effect that the gold and ornaments under seizure were kept by him only for the purpose of sale and they did not belong to his family. It is in these circumstances, after due investigation, proceedings were instituted against the appellant which ultimately resulted in the impugned order now appealed against.
The learned counsel for the appellant submitted that the appellant has been proceeded against on charges of contravention under Sections 27(1), 16(4), 8(1) and 6(2) of the Act and made submissions with reference to the maintainability of the charges in the light of the evidence available on record.

(3.)IN respect of the charge under Section 27(1) of the Act the learned counsel contended that in order that a person could be proceeded against as a dealer without a licence the Department must be able to prove by legal evidence that there was continuity of transaction on the part of the appellant dealing in gold and gold ornaments as a dealer within the meaning of Section 27(1) of the Act. It was urged that mere recovery of certain gold and ornaments from the custody or possession of the appellant would not ipso facto make for a charge that the appellant was dealing in those gold and gold ornaments as a dealer within the meaning of Section 27(1) of the Act. The learned counsel also placed reliance on the ratio of the ruling of the Madras High Court in the case of Kanyalal Chandrakumar v. Union of INdia, reported in 1979 2 MLG 379 and contended that the word 'carry on' occurring in Section 27(1) of the Act has been interpreted as connoting continuity of transaction on the part of a person charged with the offence of a dealer without licence under Section 27(1) of the Act. The learned counsel also placed reliance on the ruling of the Supreme Court in the case of Mohd. Shabbir v. State of Maharashtra, reported in AIR 1979 SC


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