K T KURUVILA Vs. COLLECTOR OF C EX

JUDGEMENT

(1.) SINCE the above applications and appeals arise out of the common impugned order of the Collector of Central Excise, Cochin, dated 1-6-1987, they are taken up together and disposed of by a common order.

(2.) Appellant Kuruvila is & licensed Gold Dealer and is running a Gold Dealer shop, which is a proprietory concern under the name Poornima Jewellery at Trichur. Appellant Jose is the Power of Attorney of appellant Kuruvila looking after the gold business of Kuruvila. On 17-8-1983 at about 11 a.m. the Central Excise authorities visited Poornima Jewellery, the licensed premises of appellant Kuruvila at Trichur, and seized under a mahazar the following gold and gold ornaments, which had not been accounted for in the statutory accounts:

(3.) SHRI Bhatia, the learned Senior D.R., submitted that the gold and ornaments were actually found in the licensed premises and admittedly had not been accounted for. The learned Senior D.R. placed reliance on Section 33 of the Act and submitted that gold and ornaments found in business premises and not accounted for should be deemed to be part of the stock in trade of such dealer or held by him in his capacity as a dealer. The learned Senior D.R. further referred to the statements of appellant Jose and Thommachan and submitted that they are inculpatory in nature implicating not only themselves as being privy to the commission of offence under the Act but also implicating appellant Kuruvila, the sole proprietor of Poornima Jewellery. The learned Senior D.R. further urged that no notification is shown to have been issued under Section 5 of the Act and any administrative instructions issued by the Finance Ministry will not be binding on adjudicating authorities unless the instructions have the statutory force. Even assuming that the Amnesty Scheme would give benefits to appellant Kuruvila, the learned Senior D.R. contended, so far as the Gold (Control) Act, 1968 is concerned the applicability of the same is restricted only to the contravention under Section 16(7) of the Act and will not govern other contraventions. The learned Senior D.R. further urged that under the Amnesty Scheme the declaration alleged to have been given by appellant Kuruvila was only before the Income-tax Officer with reference to concealment of income not accounted for and there is no evidence on record to actually connect that the unaccounted income was relatable to the gold ornaments under seizure in the present case. The learned Senior D.R. further urged that the scope and ambit of Section 55 of the Act is very wide and comprehensive and a licensed Gold Dealer is not entitled under the Act to purchase gold ornaments from persons other than a licensed dealer except in accordance with Section 31 of the Act and on the admission of appellant Kuruvila that he purchased old ornaments only for the purpose of remanufacturing new ornaments for purposes of sale should have been accounted for in terms of Section 55 and the very initial purchase of the old ornaments should be supported by proper voucher in terms of Section 55 of the Act. The learned Senior D.R. further urged that appellant Jose cannot be set up as a front or facade of appellant Kuruvila under the garb of a Power of Attorney so as to extricate himself from the clutches of law in respect of contraventions and contended that if one were to take a view that offences committed by a Power of Attorney admittedly running the gold shop of a licensed Gold Dealer would not in any way affect the principal namely the licensee, then everybody can merely set up Power of Attorney and commit contraventions under the Act and go scot-free. The learned Senior D.R. urged that such a construction would lead to a situation of manifest absurdity or anomaly rendering the very Act itself totally unworkable enabling the offenders go scot-free as it were.