PRASANTA KUMAR DAS Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal is directed against the order of the Collector of Central Excise, Calcutta, dated 15.6.1979 confiscating 2,235.500 grams of gold ornaments and soverigns valued at Rs. 62,928.00 under Section 71 of the Gold (Control) Act, 1968, the Act for short, permitting redemption of the same on payment of a fine of Rs. 90,000/- under Section 73 of the Act and imposing a penalty of Rs. 10 lakhs jointly on both the appellants under Section 74 of the Act.

(2.) The first appellant, Sri P.K. Das is the son and the appellant Sri N.C. Das is the father. Sri P.K. Das, the son is a pawn broker. On 13.7.1976 the Central Excise authorities searched the premises of M/s. New Luxmi Jewellers, the pawn broking shop of the appellant, Sri P.K. Das, and found him in possession of primary gold, gold coins, new ornaments and old ornaments etc, as detailed in the impugned order totalling 2,235.500 grams. The authorities also found two daily sales account books evidencing transaction in gold ornaments to an extent of 4570.050 grams during the period 10.1.1976 to 11.7.1976, and transactions for 21,144 grams of gold ornaments for the period 1.1.1982 to 15.1.1983. Since the appellant Sri K.P. Das who is neither a licensee under the Act, nor a certified goldsmith could satisfactorily account for the gold coins and ornaments as well as the various entries in the sales account books, the authorities effected seizure of the same and other relevant documents as per law under a Mahazar. Sri P.K. Das gave a statement before the authorities on 13.7.1976 admitting the seizure of gold ornaments. Sri P.K. Das further stated that he and his father used to take orders for makinq gold ornaments and these orders were being taken in the name of M/s. New Luxmi Jewellers. He stated that he would be able to inform the names and addresses of the customers later on. Sri P.K. Das further stated that in their premises there is a factory for making gold ornaments for their shop and for polishing. He further stated that the goldsmiths were working for their factory and except Sri Gosto Behari Mondal, the others were not certified goldsmith and GS 13 Register which the authorities seized at the spot was entirely written by him. It is in these circumstances, after further investigation proceedings were instituted against the appellants which eventually culminated in the present impugned order now appealed against.

(3.) WE have carefully considered the submissions made before us. The fact that on 13.7.1976 the authorities effected seizure of gold ornaments and soverigns along with certain account books from the premises in the occupation of the appellants is not disputed and is admitted. WE would like to bear in mind at the outset that admittedly the appellants are neither a licensee under the Act, nor certified goldsmiths. The appellant Sri P.K. Das has given an inculpatory statement admitting the fact that he and his father had been dealing in gold business without a licence taking orders from various customers and manufacturing ornaments through various goldsmiths of whom Sri Mondal alone is a certified goldsmith. He further stated that GS 13 register was written by him. WE have carefully gone through the statement recorded from Sri P.K. Das by the authorities and we are satisfied that the same is voluntary and true and would merit acceptance. The statement admittedly was retracted only on 16.7.1976, and no satisfactory explanation has been given for belated retraction. The plea of the learned counsel before us was that the statement was recorded under threat and coercion. If really the statement had been brought into existence under threat and coercion, we are at a loss to understand as to why the appellants did not avail themselves of the opportunity to cross examine the officers in whose presence the statement was given. The learned counsel is not able to give us any explanation in this regard. The plea of the learned counsel that the statements are that of father and son and are, therefore, not admissible in terms of Section 70 of the Act, is also not tenable because the statement has been given by son, Sri P.K. Das and under the same the other appellant, who is the father who admittedly was present, has also subscribed to the correctness of the same by putting his signature. In the circumstances, the statement cannot be considered to be a joint statement as contended. No doubt the GS 13 register of certain goldsmith, Sri Mondal was recovered at the time of seizure, the authorities do not appear to have properly investigated the entries therein with reference to the ownership of the various names entered therein. Since the appellant Sri P.K. Das gave a statement that GS 13 register was written by him, the adjudicating authority would appear to have proceeded on the basis that it was merely a document manipulated and created in the name of the said goldsmith by Sri P.K. Das with a view to extricate himself from the clutches of law. The GS 13 register was not made available to us for our perusal. The statement of Sri P.K. Das and the surrounding circumstances would indicate that various people have entrusted ornaments for remaking to Sri P.K. Das who got them manufactured through goldsmith, Sri Mondal. The proviso to Section 71 of the Act is very clear that the gold ornaments belonging to third parties would not be liable for confiscation unless there was knowledge or connivance on their part with reference to the commission of any offence under the Act. In the present case, the details of the ornaments belonging to the third parties are not available. It does not appear to have been investigated at all in this regard. Nor the learned departmental representative is able to enlighten us on this question. To a specific query, Sri Sanyal, learned advocate for the appellants, submitted that 331 grams would account for the third party's ornaments. It was urged that 948.500 grams represented family ornaments of the appellants. For want of details and also GS 13 register, we proceed on the basis that some ornaments regarding which entries were made in the GS 13 register belonged to third parties and some ornaments belonged to the appellant's family. WE keep this at the back of our mind only to assess the seriousness of the culpability of the appellant under the provisions of the Act in regard to the ornaments under seizure. The ornaments under seizure are admittedly of 22 carat purity.