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TMI Blog1989 (8) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the vouchers and were received just before the visit of the officers concerned on 22-11-1985. It was further stated that immediately after the seizure which ended in the late night of 22-11-1985, the appellants vide their letter dated 23-11-1985 informed the authorities concerned that the alleged excess were duly covered by proper vouchers and to substantiate their defence the copies of the said vouchers were again enclosed with the said letter. It was further stated that when the appellants failed to receive any reply to their letter dated 23-11-1985, they again made a request to the authorities concerned vide their Registered letter dated 2-12-1985 for the release of the seized gold ornaments, but of no avail. During the adjudication proceedings affidavits of the person/persons concerned were also filed by the appellants to substantiate their defence. After the usual proceedings, the Adjubilating Authority ordered for the confiscation of the seized gold ornaments and also imposed the penalty as detailed out in the impugned order holding that the defence was after thought. Hence the present appeal. 3. We have heard Shri Harbans Singh, learned counsel for the appellants a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 869.300 grams showed in G.S.12 Register from the stock of new gold ornaments weighing 9710.600 grams found on physical verification, a balance of new gold ornaments weighing 1541.300 grams was found in excess of their stock. It is on this premises Shri Harbans Singh, learned counsel for the appellant contended that the seizure of the entire stock-in-trade without ascertaining as to which particular ornaments were not accounted for or were received without vouchers was illegal as held by the Hon'ble High Court in the case of L. Kasinath v. Collector, AIR 1972 All 16 and upheld by a Division Bench on the same High Court on appeal by the Department in the case of Collector of Central Excise v. L. Kasinath, AIR 1972 All 231. From the panchnama which is on record we find that at the relevant time the appellants were holding in their stock old ornaments, test needles and new gold ornaments. The entire stock was physically verified with the statutory records, viz., G.S.ll Register, G.S. 12 Register, Repair Register, issue/Receipt Vouchers etc. and the statutory records after scrutiny were taken into possession. From , the panchnama we further observe that the excess ornaments were seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns as per the vouchers produced during the afternoon when the search was made also lends assurance to the fact that the excess ornaments were segregated. Under these circumstances, the absence of the identification of the excess gold ornaments loses its significance and consequently in the peculiar facts and circumstances of the case in hand, the seizure cannot be termed as illegal. 6. On merits, Shri Harbans Singh, learned Counsel for the appellants contended that the Show Cause Notice was issued to the appellants for contravening the provisions of Sections 33, 36 and 55 of the Gold (Control) Act, but the Adjudicating Authority dropped the charge under Section 33 and found the appellants guilty for contravening the provisions of Sections 36 and 55 of the Gold (Control) Act. Shri Harbans Singh further submitted that Section 36 of the Gold (Control) Act provides that every acquisition, acceptance, sale, delivery, transfer or disposal of gold by the licensed dealer shall be made in accordance with such conditions limitations and restrictions as may be prescribed in this behalf. He submitted that the gold ornaments alleged to be excess gold ornaments were received from six dealers un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion, but also enclosed the copies of the vouchers and further requested to release the same through their registered letter dated 2-12-1985 (again enclosing the copies of the vouchers). In reply Shri Rakesh Bhatia supported the impugned order. From the record we find substance in the argument of the learned counsel for the appellants. From the records we also find that the contention of the learned counsel for the appellants that immediately after the seizure on 22-11-1985 a letter dated 23-11-1985 was sent to the Collector, Central Excise giving out the full details regarding the acquisition of excess gold ornaments in question from six persons. Not only this, the copies of the vouchers were also enclosed. The appellants have filed a Photostat copy of the postal certificate under which the said letter was sent to the Collector, Central Excise. From the records we also find that the said letter was posted by the Shri Jasbir Singh of the appellant company as is evident from his affidavit on record. In his affidavit he has clearly stated that he posted a letter dated 23-11-1985 under postal certificate on 23-11-1985 and that with the said letter copies of vouchers were also enclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her significant that after the filing of the affidavits by the aforesaid six persons during the ad-judication proceedings the Adjudicating Authority did not summon the said persons for cross-examination with respect to the averments made in the affidavit. Thus the fact remains that the said vouchers and the affidavits remained unchallenged by the Department. It deserves to be stressed here that whenever the affidavits are filed in defence, the Adjudicating Authority has a right to cross-examine the deponents by summoning them in case the Adjudicating Authority doubts about the veracity of the statement made in the affidavit or needs further information. In this view of the matter we are tacitly supported by the law laid down by their Lordships of the Supreme Court in the ease of Harbans Lal v. M.L. Wadhawan & Ors., 1987 (27) E.L.T. 584. In that case it was held that the witnesses produced on behalf of the detenu in rebuttal of the allegations against him can be cross examined by the detaining authority and that right cannot be denied to them. Thus we hold that the defence of the appellants that the gold ornaments found in excess were received from the six persons as stated above is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technical defects as entries had not been made although the transactions had been duly established. In such a situation, it is not a fit case for confiscation of the ornaments and that was rightly held so by us." (Emphasis supplied) In a number of decisions rendered by this Tribunal subsequently, to quote a few, - S/Shri Kewal Krishan Butta and Bishan Dass Butta, New Delhi v. Collector of Central Excise & Customs, New Delhi (Order No. 329/83-NRB, dated 4-8-1983); Shri Parshotam Lal, M/s. Parshotam Jewellery v. Collector of Central Excise, New Delhi (Order No. A/101/86-NRB, dated 14-2-1986); and M/s. Jamna Dass Parkash v. Collector of Central Excise & Customs, Chandigarh (Order No. A/105/86-NRB, dated 28-2-1986) reported in 1986 (24) E.L.T. 618 (Tribunal); and M/s. Bharat Art Jewellers v. Collector of Central Excise, New Delhi (Order No. A/133/86-NRB, dated 19-3-1986) this Tribunal has taken a consistent view that where it is found that the entries had not been made in the statutory record although the transaction/transactions had been duly established, it would not be a fit case for confiscation of the ornaments and a penalty of proper nature be imposed obviously to keep the pers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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