ORDER
B.N. Rangwani, Collector
1. Shri Gour Chandra Das, appellant accompanied by Shri R. M. Das, Consultant appeared before me for personal herding. At the time of persona] hearing the various points raised in the appeal petition dated the 9th August, 1978 were reiterated.
2. It was pointed out to Shri R.M. Das, Consultant, that there are several contradictions in the submissions of the appellant at various stages. So far as the Gold which has been seized, the appellant had admitted in his statement dt. 6.1.78 that:
(i) the gold ornaments were seized from his business premise,
(ii) the said gold ornaments were neither recorded in the G.S. 13 register nor in any other account book,
(iii) the said gold and gold ornaments were melted from the gold belonging to Shri Gour Chandra Das–the appellant,
(iv) the new ornaments manufactured from the gold belonging to Shri Gour Chandra Das–the appellant after melting, were to be delivered to various customers against old ornaments which would be tendered by the customers to him for exchange with the new ornaments already kept ready for sale,
(v) he could not produce any evidence documentary or otherwise in respect of the new gold ornaments which were manufactured out of the gold of Shri Gour Chandra Das–the appellant,
(vi) no other goldsmith worked in his working premises except that his brother, Shri Birendra Nath Das, who sometimes helped him in pawn business.
3. Subsequently, in response to the summons issued to Shri Gour Chandra Das, Shri Gour Chandra Das deposed before the Superintendent of Central Excise, Gold Cell, that:
(i) Three pawn registers seized from his shop contained the account of pawn business in gold ornaments,
(ii) he had no G.S. 13 register for the year 1381 B.S. because he acquired his goldsmith certificate in the month of January, 1975.
4. Later on, Shri Gour Chandra Das filed a copy of the affidavit affirmed by his sister-in-law Smt. Nirmala Das, wife of Late Subodh Chandra Das, on 4.4.78 wherein she had stated in the affidavit that Shri Gour Chandra Das is her brother-in-law and that after the death of her husband, Shri Gour Chandra Das is looking after her. She also stated that Shri Gour Chandra Das is a bachelor. It was further stated by her in the affidavit that on the 15th day of December, 1977, Shri Gour Chandra Das proposed to give him some of her ornaments which he wanted to utilise as his working gold and that he assured her that either the price of the ornaments would be paid by Shri Gour Chandra Das to her or of similar weight would be replaced. Consequently, the said Smt. Nirmala Das as affirmed in the affidavit allowed Shri Gour Chandra Das to remove her old and used ornaments weighing 136,000 grms. on the 15th December, 1977, and that after removing the said ornaments Shri Gour Chandra Das melted the same and obtained 135.600 grms. of primary gold leaving a melting loss of 0.400 grms.
Smt. Nirmala Das further declared in the said affidavit that she is the real owner of the said ornaments as her brother-in-law, Shri Gour Chandra Das neither paid the price of her ornaments nor ornaments of similar weight were replaced by him.
5. In his reply dated the 10th April, 1978, i.e, 6 days after the affidavit was affirmed by Smt. Nirmala Das, Shri Gour Chandra Das once again stated that new ornaments seized were re-made out of his gold for the purpose of exchange with the old and used ornaments of his customers and that he gets making charges in connection with such exchange. He also confirmed that whatever he stated in his statement dated 6.1.78 is reiterated i.e., he sticks to what he said in his statement dated 6.1.78. He further stated that he did not buy any gold ornaments as alleged in the Show Cause Notice but he admitted that he did not maintain any G.S. 13 register and that after re-making the new ornaments seized were also not entered in the said register. Shri Gour Chandra Das further stated in his reply to the Show Cause Notice, that the old and used ornaments of Smt. Nirmala Das, his sister-in-law, were removed for the purpose of melting and re-making new ornaments and that said Smt. Nirmala Das was not aware of the said fact i.e. the fact of removal of the ornaments from her place or custody or the fact of melting and making new ornaments for the purpose of exchange with old and used ornaments of other customers as and when they turn up.
6. From the above mentioned facts it is obvious that the statement made by Smt. Nirmala Das is false because if the gold ornaments of Smt. Das were removed without her knowledge as stated by Shri Gour Chandra Das (though in the same letter dated the 10th April, 1978 he has contradicted himself by stating that the seized ornaments were made from his own gold), the statement of Smt. Nirmala Das in the affidavit that she allowed Shri Gour Chandra Das to remove the ornaments, is false. It is, therefore, obvious that the entire theory of making Smt. Nirmala Das as the owner of the seized ornaments is false so as to avoid the
confiiscation of the said ornaments under Section 71 of the Gold (Control) Act, 1968.
7. The evidence on record obviously shows that Shri Gour Chandra Das was purchasing gold from the market, making new ornaments and selling the same to the customers because Shri Gour Chandra Das had admitted on four different occasions viz., on 6.1.78, 14.2.78, 10.4.78 and 29.4.78 that he used to purchase gold for making ornaments. But he has not been able to prove whether the said new ornaments were sold to various customers in exchange of old and used ornaments. Even if it is so, Shri Gour Chandra Das falls within the category of a dealer and as such has contravened the provisions of Section 27(1), 41(b) of the Gold (Control) Act, 1968 inasmuch as he acted as a dealer, bought gold, converted the said new ornaments without making any entry in any account book including the G.S, 13 register. So far as the G.S. 13 register is concerned Shri Gour Chandra Das himself has admitted and the G.S. 13 register itself shows that the said register was not maintained for a long time and the ornaments under seizure were also not recorded in the G.S. 13 register. As such the charges for contravention of Section 55 of the Gold (Control) Act, 1968 stand proved.
8. So far as the private registers are concerned, the loose sheet seized from the business premises of Shri Gour Chandra Das shows that he bought old gold ornaments weighing 451.426 grms. valued at Rs. 29,794/-on 26.12.1381 B.S. The latest plea adopted by Shri Gour Chandra Das that the said 451.426 grms. of gold ornaments were unredeemed ornaments in respect of his pawn business does not withstand the test of documentary evidence because the pawn registers were also seized and Shri Gour Chandra Das was given full opportunity by the Deputy Collector of Central Excise, Gold Cell, at the time of personal hearing to point out the name, description and weight of the various unredeemed ornaments appearing in the pawn registers so as to tally the quantity of 451.426 grms. of gold ornaments but he failed to do so. The plea taken at the appeal stage is that he could not tally the unredeemed ornaments in the pawn register with the new ornaments seized as shown in the loose sheet because of a very short time allowed to him before the high officials in the Customs House and as such he could not co-relate any of the items of the goods noted in the pawn registers with the loose sheet seized due to the gap of time factor. At the time of personal hearing before me, Shri R.M. Das and Shri Gour Chandra Das were allowed to sit with the Gold Control Officers and spend as much time as they wanted and tally the entries of unredeemed gold ornaments in the pawn registers with the new ornaments shown as having been purchased as per the loose sheet. Shri R.M. Das as well as Shri Gour Chandra Das admitted that purchase of the ornaments shown in the loose sheet seized, would not tally with the unredeemed gold ornaments as per the pawn registers. In short, it is obvious that the new ornaments shown to have been purchased as per loose sheet seized, do not form part of the unredeemed ornaments as entered in the pawn registers.
9. For the reasons stated above I hold that the various charges levelled against Shri Gour Chandra Das stand conclusively proved. I also do not find any justification to the appellant’s plea for taking a lenient view because as against the value of Rs. 9421/-of new ornaments seized which were new, multiple in number and similar in designs, the Deptuy Collector has already taken an extremely lenient view in allowing the redemption of the said ornaments on payment of a fine of Rs. 3,000/- only. Further as against a maximum penalty of more than Rs. 1,95,000/-which could have been imposed for contravention of the provisions of the Gold (Control) Act, 1968, the Dy. Collector has already taken a lenient view by imposing a sartly penalty of Rs. 11,000/- only.
ORDER
For the reasons stated above, the appeal petition is rejected.
Registered with A/D.