1986 (5) TMI 185 - AT - Central Excise

Summary

Issues Involved:

1. Search and seizure of gold and gold ornaments.
2. Joint family business and ownership.
3. Non-issuance of show cause notice to Shri Mrigendra Nath Gayen.
4. Compliance with Sections 63, 79, 83, and 102 of the Gold Control Act.
5. Reliability of G.S. 13 Register.
6. Examination of witnesses.
7. Determination of individual liabilities.
8. Application of mind by the Collector.
9. Penalty imposition and reduction.

Issue-wise Detailed Analysis:

1. Search and Seizure of Gold and Gold Ornaments:
The Central Excise Officers conducted a search on the residential-cum-working premises of a joint family, drawing up a Panchnama dated 4-3-78, indicating the quantity of gold and gold ornaments recovered. The Panchnama was signed by Shri Mrigendra Nath Gayen and others present. The Collector issued an order on 1-7-1978 under Section 66(3) of the Gold Control Act, listing the documents seized.

2. Joint Family Business and Ownership:
The families lived as a joint family, and the business was also a joint family business. Despite this, one son, Shri Thaneswar Gayen, did not participate in the goldsmith business. The appellants contended that the gold sovereigns and ornaments belonged to the family members and were acquired through succession, presents, and gifts.

3. Non-issuance of Show Cause Notice to Shri Mrigendra Nath Gayen:
Despite being the head of the family and joint owner of the goods, no show cause notice was issued to Shri Mrigendra Nath Gayen. The appellants argued that this deprived him of the opportunity to state his case or be heard during the proceedings. The Tribunal noted that Shri Mrigendra Nath Gayen was a necessary party, and the non-issuance of a show cause notice to him violated Section 79 of the Gold Control Act.

4. Compliance with Sections 63, 79, 83, and 102 of the Gold Control Act:
The appellants argued that the officers did not conduct the necessary enquiries or investigations as required under these sections before issuing the show cause notice or passing the order. The Tribunal agreed that compliance with these provisions was mandatory, and the lack of such compliance necessitated the return of the seized goods.

5. Reliability of G.S. 13 Register:
The Collector did not place credence on the G.S. 13 Register produced by Shri Niranjan Gayen, considering it unreliable. The appellants contended that the register contained evidence of inspection by departmental officers and should not have been dismissed. The Tribunal did not find the Collector's dismissal of the register justified.

6. Examination of Witnesses:
The appellants wanted to produce witnesses to support their contention that the ornaments belonged to their customers, but the Collector did not allow this. The Tribunal noted that the affidavits were filed after the proceedings and were not produced before the Collector, thus not substantiating the appellants' claims.

7. Determination of Individual Liabilities:
The appellants argued that the Collector imposed penalties without determining individual liabilities. The Tribunal noted that the statement dated 4-3-1978 indicated joint liability, and the appellants accepted joint responsibility for the gold and ornaments.

8. Application of Mind by the Collector:
The appellants claimed that the Collector did not fully apply his mind, citing an error in the inclusion of Shri Tarak Nath Gayen's name. The Tribunal acknowledged the mistake but did not find it indicative of a lack of application of mind by the Collector.

9. Penalty Imposition and Reduction:
The Tribunal observed that the accounts were not properly maintained, indicating a violation of Section 55 of the Gold Control Act. Considering the facts and circumstances, the Tribunal reduced the penalty from Rs. 2 lakhs to Rs. 75,000/- (Rupees seventy-five thousand only).

Conclusion:
The Tribunal held that Shri Mrigendra Nath Gayen was a necessary party and the non-issuance of a show cause notice to him necessitated the return of the seized gold. The penalty imposed on the appellants was reduced, and the order of the Collector was modified accordingly.