TMI Blog1988 (10) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... les were got removed from coal stove and furnace respectively. The gold was got dried. Some primary gold was also recovered from the inner room. A total quantity of 491.500 grams of primary gold was recovered and seized. Besides, two account books and some loose papers containing entries pertaining to melting and refining of primary gold, metal stamps seven in numbers meant for embossing primary gold, one touch stone having signs of use, one porcelain bowl used for washing gold were also found in the premises. On enquiry the appellant revealed that he was neither a certified Goldsmith nor a Gold Dealer. Consequently the recovered articles as detailed out in, Annexure A , B and C to the Panchnama were seized. It is their further case that when the officers concerned reached the refinery of the appellant they apprehended one Babu Lal who was coming out of the said premises and as a result of his personal search six pieces of primary gold weighing 111.850 grams were recovered. Out of the said six pieces one piece weighing 85.000 grams was refined gold in the shape of Katori and known as Rawa and was stamped as fine gold 999 On enquiry the said Babu Lal stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel appearing for the appellant submitted that the department has failed to prove the charges levelled against the appellant under Sections 11 and 17 of the Gold (Control) Act inasmuch as the premises of the appellant was never used as Refinery as defined in Section 2(t) of the Gold (Control) Act and that the gold found in the premises at the time of raid belonged to two Goldsmiths viz. S/Shri Harish Chandra and Madan Lal as would appear from the copies of the GS registers of the said two certified Goldsmiths. He further submitted that confessional statement of the appellant should not have been taken into consideration as it was made at a time when the appellant was not in a fit state of mind . As regards the charge under Section 8(1) of the Gold (Control) Act Shri M. Chandrasekharan, learned counsel for the appellant contended that the recovered gold was not primary gold but was article of gold and therefore, the charge under Section 8(1) of the Gold (Control) Act must fail and cited the following case law: (1) Shri Ratan Lal Garg v. Collector of Central Excise, Kanpur, Civil Misc. Writ No. 1043 of 1967 decided on 7-3-68 by a Single Judge of the Allahabad High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Kishan Old Hasli Ka Pattar 76.800 Total: 244.500 Similarly, certified goldsmith Shri Madan Lal had melted/assayed the old gold ornaments of his customers as per details available in the G.S. 13 Registers in the following manner :- Entry No Date Name of the Cus- tomer Gold ornaments reed. Weight in gms. 114 13-7-80 Phool Chand 2 rings 34.400 115 14-7-80 Popy Har 1 Ring 3 Chain 119.500 116 15-7-80 Swami Dayal Har 1 Churis 4 99.700 Total: 253.600 7. From the impugned order we also find that at the time of raid and seizure on 15-7-80 the statement of the appellant was also recorded. In his said statement the recovered gold was partly owned by him and rest of the quantity was stated to belong to M/s. O.P. Jewellers, Agra and other customers. It is significant to note that the names of the said two certified Goldsmiths viz. S/Shri Harish Chander and Madan Lal who are said to have melted the old gold ornaments were never disclosed by the appellant in his statement. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been obtained from refining of 120 grams of primary gold delivered by younger son of M/s. O.P. Jewellers, Agra, who as stated above denied of having given any gold to the appellant for refining. The attack of Shri M. Chandrasekharan, learned counsel for the appellant that the said statement was made by the appellant at the time when he was not in a fit state of mind leads nowhere. From the record we find that the raid was conducted on 15-7-80 and the show cause notice was issued on 30-12-80 and in the reply submitted by the appellant to the show cause notice the said confessional statement was never attacked even though the copy of the said statement was supplied to the appellant. From the record we also find that the said statement was never retracted. Even at the time of arguments it was not argued on behalf of the appellant that the said statement was retracted. From the record it is clear that the said statement of the appellant is in Hindi and was written by himself and at the end of his statement the appellant has certified that he has made the said statement voluntarily and without any pressure and the same is true. It appears that the learned counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... always subject to the inspection and checking by the authorities concerned. No presumption about their correctness is attached. The learned counsel for the appellant has not pointed out any section or rule under which such entries may be presumed to be correct. As stated above in the instant case no evidence to corroborate the said entries was ever produced by the defence. Neither the certified Goldsmith nor the maker of the alleged entry in G.S. Register were examined. Under these circumstances no importance can be attached to the said entries. Apart from a perusal of the said entry it would appear that both the said Goldsmiths received gold ornaments from their customers from different dates beginning from 8-7-80 to 15-7-80. Even if we assume that the alleged customers of the said two goldsmiths entrusted their gold ornaments for remaking as contended by the defence there is nothing on record to prove that the primary gold under seizure was the resultant of melting the ornaments alleged to have been entrusted by the alleged customers to the said two certified goldsmiths. As stated above the alleged customers or certified goldsmiths never claimed the ownership of the seized gold n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the instant case as can be seen from the evidence on record that at the time of visit the officer concerned found the appellant with his five employees namely Vilas, Jalindhar, Mahadeo, Shanker and Tatyaba, all engaged in the process of refining the gold at various stages. Besides, two glass flasks were kept on coal stove containing gold in water and three crucible were kept on the furnace in which refined gold was being melted. The flasks and crucibles were got removed from coal stove and furnace respectively and the gold was got dried. In addition to the recovery of gold seven different stamps to emboss the primary gold, touch stone having signs of use and porcelain bowl were also found in the premises and taken into possession. For evidence purposes photographs covering the working equipments along with the appellant with his employees were taken and kept on record. These photographs were inspected by the defence before filing its defence reply and cross-examination of the officers and witnesses. Thus, under these circumstances the fact that the appellant s premises was used as a refinery was not seriously disputed. What was disputed before us was that the total quantity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also apprehended while handling gold which he had admitted in his statement. He also noticed the fact that in the ordinary course of business, the appellant maintained the two account books which contain the entries of refining of gold and silver both. Besides, there were entries for the purchase of chemicals, salt etc. and for miscellaneous expenses. If he had exclusively been doing the work of silver refining then there was no need to mention the words silver against the entries in the said two account books. Thus we agree with the Adjudicating Authority and reject the contention of the learned counsel for the appellant. 14. The other contention of the learned counsel for the appellant that charge under Sec. 8(1) of the Gold (Control) Act cannot be sustained because the gold in the liquid form found on the spot was an article of gold and not primary gold . The terms article and primary gold have been defined in Sec. 2(b) and (r) respectively of the Gold (Control) Act as follows - (b) article" means any thing (other than ornament), in a finished form, made of, manufactured from or containing gold, and includes - (i) any gold coin, (ii) broken pieces of an ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling, the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendment if the mistake is brought to its notice by the Collector of Central Excise or of Customs or the other party to the appeal: Provided that an amendment, which has the effect of enhancing any penalty or fine in lieu of confiscation or confiscating things of greater value shall not be made under this sub-section unless the Appellate Tribunal has given notice of its intention to do so, to the other party and has allowed him a reasonable opportunity of being heard. (3) The Appellate Tribunal shall send a copy of every order passed under this section to the Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f penalty mentions Section 75 of the Gold (Control) Act, the offender cannot be penalised under Section 74 of the Gold (Control) Act, but that case is distinguishable on the ground that the fact constituting the breach under Section 74 of the Act are different from the facts constituting the breach under Section 75 of the Gold (Control) Act. Likewise lesser penalty is provided in Section 74 in comparison to the penalty provided in Section 75 of the Act. In the instant case whether it is the case of illicit acquisition, possession, control of primary gold or of article the facts constituting the breach are the same under sub-section (1) and sub-section (3) of Section 8 and the breach of both the said sub-sections is punishable under Section 75 of the Gold (Control) Act with the same amount of penalty. 15. Thus, even assuming with the learned counsel for the appellant that sub-section (2) of Section 8 was not quoted in the show cause notice we hold that the appellant was guilty of breach of sub-section (2) of Section 8 of the Gold (Control) Act. 16. Alternatively it was also argued that the absolute confiscation and the amount of penalty of Rs. 1 lakh is harsh. We have considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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