SESHMAL M JAIN Vs. COLLECTOR OF CENTRAL EXCISE
LAWS(CE)-1986-8-10
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on August 29,1986

Appellant
VERSUS
Respondents

JUDGEMENT

- (1.)THIS appeal is directed against the order of the Collector of Central Excise, Bangalore dated 31.12.1985 imposing a penalty of Rs. 10,000/- on the appellant under Section 74 of the Gold Control Act, 1968 (hereinafter referred to as the 'Act'). On the basis of information Central Excise Officers attached to the Gold Cell, Bangalore, intercepted k persons at Room No. 61, Hotel Sharada, Bangalore. The authorities also recovered a total quantity of 3,163 gms. of primary gold valued at Rs. 6,32,600/- from the possession of two of the said four persons. Since the possession of primary gold by the said person was not satisfactorily accounted for the gold was seized by the authorities under law. One of the four persons in the said hotel room Mahendra Kumar Agarwal by a statement dated 19.5.1984 stated that the gold under seizure was intended to be eventually delivered to the appellant herein. It is in these circumstances after further investigations, proceedings were instituted against the appellant resulting in the present impugned order now appealed against.
(2.)Shri Jeshtmal, the learned Counsel for the appellant submitted that there is absolutely no evidence at all on record connecting the appellant with the commission of any offence. Merely because the persons from whom the gold was seized gave a statement that the gold was intended to be eventually given to the appellant that would not be a circumstance on the basis of which the appellant could be proceeded against on a charge of contravention under the provisions of law. The learned Counsel also drew our attention to the observations of the learned Collector under the impugned order that the appellant had not brought in any evidence to prove his innocence and assailed that this reasoning of the adjudicating authority is incorrect in law.
Shri Bhatia, the learned SDR submitted that excepting the statement of Mahendra Kumar Agarwal, one of the occupants in the hotel room that the gold under seizure was intended to be delivered to the appellant, there is no evidence on record connecting the appellant with the gold under seizure or with the commission of any offence. The learned SDR urged that inasmuch as there is evidence to show that the appellant was in the company of the said Mahendra Kumar on earlier occasions that would be a circumstance on the basis of which one can possibly presume that in the instant case also the gold was to be handed over to the appellant.

(3.)WE have carefully considered the submissions of the parties herein. WE should confess that there is absolutely no legal evidence at all on record connecting the appellant with the commission of any offence with reference to the gold under seizure. Merely because there is a statement that the gold under seizure was intended to be eventually delivered to the appellant at a later point of time that certainly would not be a circumstance that would militate against the appellant. WE find that in approaching the entire issue the learned Collector has fallen into error by observing that the appellant had not proved his innocence. It is observed in the impugned order "Shri Sheshmul has not brought in any evidence to prove his ignorance (it should read as innocence) and non participation in the gold deal except to deny the charge. On the other hand, the visit of Mahendra Kumar and Arum Agarwal on 13.5.1984 to Bangalore and Mahendra Kumar meeting with Sheshmul has been proved beyond doubt by the first statement of Shri Mahendra Kumar and Arum Agarwal". WE are afraid we cannot subscribe to this reasoning of the adjudicating authority extracted above. Proceedings against this appellant under the Gold Control Act being penal in nature, it is for the department to establish and prove by acceptable legal evidence the charge of contravention and in the instant case there is no evidence on record to bring home the charge against the appellant. The statement of Mahendra Kumar Agarwal and other circumstances at the worst would only raise a suspicion in our mind that appellant was eventual intended consignee of the gold and it is well settled that suspicion however grave it may be cannot take the place of proof. Therefore, on consideration of the evidence on record, we are inclined to hold that the charge against the appellant has not been brought home and in this view of the matter, we set aside the impugned order now appealed against and allow the appeal.


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