TMI Blog1997 (1) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants has prejudiced the appellants and to that extant, we agree with Mr. Diwan that the principle of natural justice would stand violated. Appeal allowed. - 3897 of 1986 with 1420 of 1986 - - - Dated:- 4-1-1997 - A.M. Ahmadi, CJI and Faizan Uddin, J. [Order]. - This appeal by the assessee is directed against the order of the Customs Excise and Gold (Control) Appellate Tribunal (CEGAT for short) rendered in Appeal No. G/90/85-NRB, dated 30th July, 1986. Briefly stated the facts giving rise to this appeal are as under : 2.On 21-9-1982, officers of the Income Tax Department raided the business premises of the appellant around 9.30 a.m. and prepared an inventory of gold and gold ornaments found in the premises. After the weighment of the gold and gold ornaments was completed, a copy thereof was delivered to the appellant which showed that 62190.830 gms. of gold ornaments were found in actual stock, whereas the aggregate balance of gold ornaments in their books of account maintained under the Gold (Control) Act, 1968 (hereinafter called The Act) was 67537.100 gms. on that date. The officers of the Central Excise Collectorate, Delhi were called at about 1.00 p.m. and were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 55 of the Act read with Rule 11 of the Rules brought into force with effect from 31-10-1975, were defective and did not disclose the true and complete account of the gold in the possession and custody of the licence dealers. It went on to illustrate how the said forms were defective after the omission of form GS-10 since it also did not take care of the loss of weight (Ghat) which would necessarily fall on re-making, melting, refining and polishing of new ornaments from old ornaments etc. Suffice it to say that this court felt that after the omission of GS-10, the obligation on the dealer to maintain the accounts in forms GS-11 and GS-12 was an onerous one in that they do not provide adequate and proper columns which would reflect a true and complete account of gold owned or possessed or held or controlled by the dealer. This court, therefore, directed the administrator to look into these grievances and remedy the same by taking appropriate action and expressed the hope that in the meanwhile, no action, penal or otherwise, would be taken against the licenced dealers for failure to maintain accounts in the amended forms GS-11 and GS-12. An attempt was made by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis thereof. This Court granted an interim stay against the recovery of the penalty amount. However, on 6-12-1985, the authority suspended the appellant's licence to deal in gold which compelled the appellant to move a CMP No. 48672/85 in the pending writ petition and this Court granted an interim stay against the suspension of the license also. Thereafter, by an order dated 15-1-1986, this Court ordered as under : "Heard counsel on both sides. In all the facts and circumstances of the case we are of the view that the question of suspension and or cancellation of the petitioners' licence should await the result of the appeal that has been preferred by the petitioners to the Tribunal against the order of the Collector dated August 1, 1985. The question whether there was shortage and consequently a contravention of Sections 36 and 55 of the Gold Control Act, 1968 read with the relevant Rules and whether such contravention arises without any reference to the defective Forms GS-11 and GS-12 will have to be considered by the Tribunal in the appeal and the Tribunal will decide the latter question for coming to a conclusion that there has or has not been any contravention." 4. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on sought in regard to certain documents and papers by their reply dated 25-1-1985 which reads as follows : "As regards request for furnishing the certified copy of the working of the individual items of the inventory showing their gross and net weight and other particulars which have been summarised in Annexure-E, the relevant papers are not readily available with me and, therefore, I am not in a position to furnish the copies at this stage." 8.It may be mentioned that Annexure-E was an annexure to the show cause notice and it is with reference to the said document that certain particulars were demanded by the appellants. Lastly, Mr. Diwan submitted that the penalty under Section 74 of the Act was envisaged only if there was surplus gold liable for confiscation under the Act and not otherwise. 9.From the above, it becomes clear that after the decision of this Court in Manik Chand's case (supra), it was evident that by the deletion of GS-10, GS-11 and GS-12 were found to be incomplete and, therefore, defective by this Court and this Court went to the length of saying that no action based on the accounts in the said two forms should be initiated for levy of penalty and the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had clearly questioned the correctness of the shortfall worked out from these two forms and by way of an alternative they had contended that if the weight of other material such as lac, beads, enamel, stones etc. was deducted, the shortfall would come to 1400 gms. only. This, however, does not mean that the appellant admitted the fact that there was infact a shortfall of gold for which they could be penalised. All that they stated was that even if the authorities go by GS-11 and GS-12, if the aforesaid deductions are made, the shortfall would shrink to 1400 gms. Therefore, to take the alternative statement as an admission on the part of the appellant, was not correct. We are, therefore, of the opinion that the Tribunal, even though it states that it does not base its decision on the accounts in GS-11 and GS-12, has , in fact, relied on those accounts which, as held by this Court do not properly reflect the correct state of affairs as far as the shortfall is concerned. 10.The appellants, by their letter dated 9-1-1985, had requested the authorities to furnish the certified copy of the check list prepared at the time of the raid with a view to enabling them to check and verify the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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