TMI Blog1985 (8) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... against which the appellants filed a writ petition in the High Court of Kerala in O.P. NO. 4090/80R and the High Court of Kerala by its order dated 4.2.83 set aside the impugned order of the Government of India and remitted the matter back to the revisional authority, viz. Government of India, for consideration afresh .the plea of the appellants viz-a-viz Section 16(3) and (7) of the Act. and accordingly the revision application that stood transferred before the Government of India pursuant to the order of the High Court stands again retransferred to the Tribunal as stated above. 3. Sadananda Pai died on 28-1-1985 and the other appellants who are his legal heirs are permitted to prosecute the appeal on behalf of Sadananda Pai as his legal representative. 4. On 21-10-1974, the Superintendent of Central Excise, Ernakulam, with his officers visited the residential premises of the appellants, who are licensed gold dealers and found that a total quantity of 1263 gms. comprising new and old gold ornaments, gold articles, gold sovereigns and primary gold bars had not been declared as per law in terms of Section 16(7) of the Act. Sadananda Pai, father of the other appellants gave a sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver and above the quantum specified in the declaration of the appellants, a quantity of 1263 gms. has been found not declared and as such, the charge under Section 16(7) of the Act is clearly proved. He further urged that when appellant Sadananda Pai has categorically admitted in his statement before the authorities on 22-10-1974 that due to oversight he had not declared the excess ornaments and when this statement is proved to be true and voluntary, the charge should be held properly proved. Regarding the diaries which the appellants wanted to be summoned, the learned DR submitted that both the searching officers Kurup and Sreedharan have been cross-examined on behalf of the appellants by their advocate on 8.9.85 and as such the plea of the appellants is factually incorrect. It was further submitted by the learned DR that even assuming that a copy of the mahazar has not been furnished to all the appellants, when the contents of the mahazar have been clearly set out in the show cause notice, the appellants have been clearly made aware of the same and in the absence of proof of any prejudice, non-furnishing of a copy of the mahazar would not in any way affect the impugned order. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the authorities in his statement of 22-10-74 that excess gold ornaments possessed by him had not been declared due to oversight. The learned Counsel for the appellants was not able to convince me that this statement of Sadananda Pai was either not voluntary or untrue. He merely submitted that this solitary statement should not be taken into consideration to fasten a liability on the appellants. On consideration of the records, I find that there is nothing to indicate that this statement is either not voluntary or true. I therefore hold that this statement of Sadananda Pai to be true and voluntary and find that it is admitted by appellant Sadananda Pai himself that there has not been a full declaration with reference to the entire quantity of gold ornaments and articles under seizure. The contention of the learned Counsel that there is no specific finding by the adjudicating authority of a charge of contravention of Section 16(7) of the Act is not acceptable. It is no doubt true that the adjudicating authority could have given a more precise finding with reference to the contravention of Section 16(7) of the Act, but none-the-less that would not detract from the acceptabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is a case where the father Sadananda Pai and his sons, the other appellants herein, were partners of the firm and the father and the sons were admittedly residing in the house where the search and seizure were conducted. In such a situation, when under law every partner has to make a declaration of even his personal possession of gold and gold ornaments in terms of Section 16(7) of the Act, the plea that the charge has not specifically stated about the quantum of non-declaration in respect of each of the partners is untenable in the factual context and background of this case. Though the learned Counsel contended that there has been violation of principles of natural justice, he was not able to substantiate the same in the light of any materials available on record. This is a case where pursuant to a search effected in the residential premises of the appellants a quantity of 1263 gms. of gold ornaments, etc. were found by the authorities not declared in terms of Section 16(7) for which proceedings were instituted against the appellants by issue of a proper show cause notice. The appellants have participated in the adjudication proceedings through their counsel, have cross-exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upled with the fact that the ornaments under seizure are of varying purity from 14 ct. to 22 ct., and having regard to the nature and quantity of ornaments involved and the nature of contravention I am inclined to take a lenient view regarding the quantum of redemption fine and penalty. It should be observed that the submission of the learned Counsel for the appellants that for a charge of non-declaration in respect of a small quantity of gold ornaments of low purity, it will not be legal or just to penalise all the partners is not without force. In the factual background and circumstances of this case and having regard to the fact that Sadananda Pai was the head of the family managing the licensed firm, I hold that he alone shall be liable for contravention of a charge under Section 16(7) and in the absence of any satisfactory convincing materials individually against the other partners they should be given the benefit of doubt and exonerated. Accordingly I set aside the penalty of Rs. 1,000/- each imposed on the other appellants except appellant Sadananda Pai by giving them the benefit of doubt. So far as appellant Sadananda Pai is concerned, after giving due allowance for the se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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