TMI Blog1983 (9) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... dras. 2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri T.K. Jayaraman, Advocate for the Appellate and upon hearing the arguments of Shri S.K. Chaudhury, Senior Departmental Representative for the respondent, the Tribunal makes the following order : 3. Aggrieved by the aforesaid order of the Collector of Central Excise, Madras, the appellant filed a revision application, before the Gold Control Administrator which stands transferred to the Tribunal in terms of Section 82K of the Act. 4. Thje brief facts of the case are that on 2-4-1980 on a search of the premises of the Appellant Hansraj Jeevandas, primary gold weighing 482.900 gms. (consisting of gold bars 316.600 gms. and gold ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 10,000 on the appellant. 5. Before us, it is argued that in view of the peculiar circumstances under which the gold came to be in the possession of the appellant, no action should be taken against him in that he was not in conscious possession of the goods. 6. In so far as the primary gold is concerned, on the demise of Goki Bhen, the gold devolved on Hansraj Jeevandas the only surviving brother since 1971, almost nine years before the date of search. It is difficult to believe that for all these long years the almyrah belonging to Goki Bhen was not even looked into. In the circumstances of this case we hold that the primary gold was at the time of search in the control of Hansraj Jeevandas. Section 8(1) prohibits the possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the provisions of sub-section (3) of Section 16 would not be relevant in considering the possession of primary gold. As we have already indicated earlier, Section 8 prohibits one from possessing gold by persons except as otherwise provided in the Act. Those provisions refer to the possession of primary gold by certified goldsmiths and dealers in the course of business of manufacture of gold ornaments. The advocate for the appellant urged that in terms of Section 16(3) of the Act read with Sections 16(5) and 16(11), possession of gold which will include primary gold not exceeding 4000 gms. (in the case of a family as in the present case itself) will not be an offence under Section 8(1) of the Act in view of the provisions of Section 16, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of one month from the date of acquisition of the primary gold for the purpose declaration, the Court found for the accused. The case is thus distinguishable from the one before us in that we are dealing with an individual member of a family. 9. In the judgment of the Gauhati High Court the contention of the Senior Government Advocate that Section 16 is confined to only articles of gold and gold ornaments was repelled, again keeping in view the definition of the term gold in Section 2(j). Here too, the facts and circumstances of the case would seem to be different from the ones we have before us. Section 8(1) categorically provides that no person shall own or have in his possession, custody or control...... any primary gold, save ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `gold in Section 2(j) may be taken to include primary gold) which is required to be included in the declaration unless it has been so included. This would mean that if a declaration has to be given in respect of gold (including primary gold) and such a declaration is not given, possession ipso facto becomes an offence. This sub-section does not however authorise the possession of primary gold. If the possession of primary gold is an offence in terms of any other provisions of the Act, it would no doubt continue to constitute one despite the further provision in this sub-section that what has to be declared, being not declared, becomes an offending article. We find that this differentiation between the provisions regarding declaration and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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