Decided on August 19,1986



S.Kalyanam, - (1.)THIS appeal is directed against the Order in Appeal passed by the Collector of Central Excise (Appeals), Madras, dated 7.3.86 imposing a fine of Rs. 2500/- on the appellant for contravention of Section 6(2) besides a penalty of Rs. 500/- under Section 74 of the Gold (Control) Act, 1968, hereinafter referred to as the Act.
(2.)On 15.3.1985 at about 12.00 noon, the Superintendent of Central Excise, Kakinada alongwith the staff visited the pawn broking shop of the appellant at Main Road, Kakinada and found that 145.250 gms. (gross weight) of gold and ornaments had not been accounted for in terms of Section 6(2) of the Act. Out of the total quantity of 145.250 gms., there were two items of primary gold each weighing 16.100 and 11.650 gms. respectively of 18 and 24 carat purity. The authorities effected seizure of the gold and ornaments under mahazar and the proceedings instituted after further investigations eventually culminated in the present impugned order, now appealed against.
Shri Suganchand Jain, the learned counsel at the outset urged that he did not dispute the fact that the gold and ornaments under seizure were not duly accounted by the appellant in the pawn broking accounts-It was further urged that in the present appeal, the appellant is confining himself only with reference to gold ornaments totally weighing 117.500 gms (gross weight). So far as the un-accounted gold ornaments are concerned, it was urged that inasmuch as the same indisputably belong to third parties, the ornaments are not liable for confiscation in terms of proviso to Section 71 of the Act. The lerned counsel therefore, contended that under law, the ornaments belonging to the third parties, not being confiscable under the proviso to Section 71 of the Act, the order of confiscation under the impugned order and imposition of fine in lieu of confiscation will have to be set aside.

(3.)SHRI Vadivelu, the learned Departmental Representative submitted that though in terms of Section 6(2), the gold ornaments in a pawn broking shop, not satisfactorily accounted for would be presumed to be in the possession of a pawn broker, the confiscability of the same would certainly be covered by the proviso to Section 71 of the Act. In other words, the learned Departmental Representative did not dispute the validity of the proposition of law enunciated by the learned Counsel for the appellant.

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