ORDER
G.P. Agarwal, Member (J)
1. Being dis-satisfied with the order of confiscation of the seized gold ornaments with an option to redeem the same on payment of the redemption fine of Rs. 1,25,000/-and also imposition of penalty passed by the Collector of Customs & Central Excise, New Delhi, the appellants have filed the present appeals.
2. Factual backdrops: M/s Man Singh Lamba & Sons – appellants herein – are licensed Gold Dealers having their shops at Karol Bagh, New Delhi. Other appellants are the partners of the said firm. It is alleged that on 29.5.82 as a result of the search of the business premises of the said firm a quantity of 1502.000 grams (73 pieces) of new gold ornaments of 22 ct. purity valued at K.S. 2,46,328/- was found in excess. At the time of the search and seizure Shri Man Singh Lamba and Devinder Singh Lamba, partners of the said firm were present. Another partner, Shri Jaspal Singh was also present, but he left the place during the course of checking. Since Man Singh Lamba, partner, could not satisfactorily explained about the excess quantity of gold ornaments, the same were seized under Section 66 of the Gold (Control) Act, 1968. It is also alleged that the issue Vouchers No. 42 to 48 issued from 16.5.82 to 23.5.82 were not entered in the relevant account books. It deserves to be mentioned here that the said excess ornaments were found after taking into account the quantity covered by the said unentered issue vouchers. After usual investigation separate Show Cause Notices were issued to the appellants to show cause as to why the seized excess ornaments be not confiscated and penalty be not imposed for contravening the provisions of the Gold (Control) Act. In reply, the appellants, inter alia, contended that the excess ornaments belong to the different customers and were received by the appellants for the purpose of polishing/repairs as middlemen. After usual adjudication proceedings, the Collector, Central Excise, concluded that the charges levelled against the appellants in their Show Cause Notices were proved beyond any doubt as the seized excess quantity of ornaments were acquired by the appellants unauthorisedly, and that they failed to make the entries in the statutory records as required under Section 55 of the Gold (Control) Act and the Rules made thereunder, and thus contravened the provisions of Sections 8 and 55 of the Gold (Control) Act. Consequently, the Adjudicating Authority ordered for the confiscation of the seized excess gold ornaments with an option to redeem the same as stated above and also imposed a penalty of Rs. 50,000/- on the appellants M/s. Man Singh Lamba & Sons and Rs. 10,000/- on each of the partners S/Shri Man Singh Lamba, Devinder Singh, Inderjeet Singh, Jaspal Singh and Amarjeet Singh under Section 7k of the Gold (Control) Act. Hence these appeals. The respondent has also filed the Cross Objections which are nothing but in the nature of reply to the grounds taken in the appeal by the appellants.
3. We have heard Shri L.C. Sikka, learned counsel for the appellants and Shri S. Krishna Murthy, learned SDR for the respondent.
4. Before we proceed to discuss the arguments advanced by the parties, it deserves to be mentioned at the outset that Devinder Singh, Partner of the appellant firm M/s Man Singh Lamba & Sorts was also issued a separate Show Cause Notice in the instant case and after usual adjudication proceedings the Collector also imposed a personal penalty of Rs. 10,000/- on him vide the impugned order. Since we do not know whether any appeal was ever filed by Devinder Singh, we are not concerned with him at all.
5. Shri L.C. Sikka, learned counsel for the appellants vehemently contended that all the excess ornaments belong to their 15 customers as detailed out in para 10 of the impugned order and these excess ornaments were received for repairs, polishing and stone setting. He drew our attention to the affidavits filed by the said 15 customers. In reply Shri S. Krishna Murthy, learned SDR contended that at the time of the search and seizure of excess gold ornaments in question Shri Man Singh Lamba, appellant herein, had admitted that there were no corresponding entries in the Repair Register in respect of the seized excess gold ornaments said to have been given for repairs by their alleged customers. He further pointed out that at the time of the seizure the statement of Shri Man Singh Lamba was also recorded on the spot. In this statement Shri Man Singh Lamba failed to disclose the names and addresses of the alleged customers. He further submitted that a perusal of the affidavits filed by the said alleged customers would reveal that all the 15 customers delivered their ornaments not to the appellants, but directly to two goldsmiths for getting their ornaments repaired. On this premises, learned SDR submitted that the defence plea that the appellant firm simply acted as an agent between the customer and the goldsmiths is not tenable in law. He further submitted that during the adjudication ‘proceedings at no stage any alleged customer came forward to claim the excess gold ornaments by lodging their claims for the return of the ornaments in question. He further drew our attention to the fact that Repair Register of the appellant firm was also resumed at the time of seizure and it would appear from it that there had been only three transactions of repair during the two years period, that is to say, on 15.4.80, 5.9.80 and 2.5.82 involving a quantity of 572.700 grams. This state of affairs, according to him, would prima facie show that the appellant firm hardly handled any repair cases at all or if they did, as contended by the appellants, they never entered them in records. In this background, the learned SDR further submitted that in the absence of any cogent evidence the defence of the appellant that a big quantity of seized gold ornaments claimed to have been received for repairs in two/three days only, that is to say, 25th, 26th and 27th May, 1982 is a cooked up story. On the top of it, contended the SDR, the non-accountal of the seized gold ornaments in the Repair Register and non-entry of Issue Voucher No. 42 to 48 issued from 16.5.82 to 23.5.82 in the statutory records -a fact which was not disputed before us – speaks a volume for the appellants.
6. After giving our due consideration to the arguments so advanced, we find no substance in the contention of the learned counsel for the appellants that the excess gold ornaments were delivered for repairs, polishing etc., by the alleged 15 customers. From the record we observe that in his statement recorded on the spot at the time of seizure Shri Man Singh Lamba failed to disclose the names and addresses of the alleged customers though he has stated that the same were received for repairs from the customers. It deserves to be highlighted here that at the time of seizure according to the statement of Shri Man Singh Lamba the excess ornaments were received for repairs by them, but during the course of the adjudication proceedings the appellants came out with a new defence that the seized excess gold ornaments were directly handed over by the said 15 customers to the two goldsmiths and after doing the necessary repairs the ornaments in question were delivered by the said goldsmiths to the dealer. It is on record that the affidavits of the alleged 15 customers and the photo copies of G.S. 13 Register of the goldsmiths were produced after a lapse of more than one year from the date of the seizure. No explanation is forthcoming on record as to why the very important fact that the gold ornaments were delivered directly to the goldsmiths and the appellant firm acted as a middleman was not mentioned by Shri Man Singh Lamba in his statement recorded on the spot. Likewise, no explanation is forthcoming as to why the affidavits of the alleged customers or atleast the photo copies of G.S. 13 Register of goldsmiths were not filed immediately after the seizure. The inordinate delay of more than a year in filing the affidavits of the alleged customers and the photo copies of G.S. 13 Register of goldsmiths without any explanation is fatal to the defence. From the impugned order we find that on examination of the photo copies of the G.S. 13 Register produced during the adjudication proceedings, the Collector had found that the said photo copies do not indicate the names and addresses of the goldsmiths.; Not only that these copies also do not indicate the fact that the excess gold ornaments in question were returned to the appellants. These circumstances also go against the appellants. The contention of the learned counsel for the appellants that Section 83 of the Gold (Control) Act empowers the Adjudicating Authority to receive evidence on affidavits and therefore the affidavits filed by the alleged customers should have been believed in the absence of any cross-examination by the Department has also no force. It is true that Section 83 of the Gold (Control) Act bestows all the powers of the Civil Court under the Code of Civil Procedure, while trying a suit in respect of certain matters which includes “receiving evidence on affidavits.” Order XIX, Rule 1 of the Code of Civil Procedure providing that “any Court may at -any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable.” Proviso to this Rule provides that “where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. Interpreting the said rule the Hon’ble Supreme Court has held in the case of Viswanathan Vs. Wajid, AIR 1963 SC 1, that when the Court has not ordered the proof of a fact by an affidavit it is no evidence nor an affidavit can be used as evidence under the Evidence Act. In the case of Munibasappa Vs. Gurusiddaraja, AIR 1959 Mys. 90, while dealing with the matrimonial case it was held that affidavit is not an evidence on which a decision could be based unless the parties agree. It would be contrary to practice to act on affidavit as evidence in matrimonial cases. Besides, in our considered opinion it cannot be laid down as a general proposition that irrespective of circumstance/circumstances affidavits should as a rule be relied upon as representing the truth. Much depends upon the facts and circumstances of each’ case. In the instant case, the Adjudicating Authority after relying on the various circumstances on record had not placed any reliance upon the said affidavits. The alleged customers who are the deponents of the said affidavits have also never came forward at any stage of the adjudication proceedings to claim the gold ornaments by lodging their claim for the return of the ornaments before the Adjudicating Authority. None of the alleged customers was ever produced by the appellants as a witness before the Adjudicating Authority. Thus, if the Adjudicating Authority after taking into account the overall picture of the case and circumstances on record did not think it proper to call any deponent (customer; for cross-examination no fault can be found with him.
7. The other contention of the learned counsel for the appellants that Show Cause Notice under Section 71 read with Section 79 should have been issued to the alleged 15 customers has also no force. As per Section 71 01 the Gold (Control) Act, whenever any gold is found in possession of a person or a dealer in respect of which any provision of the Act or Rules framed thereunder had been contravened, the same becomes liable to confiscation unless as per proviso to the section where it is established to the satisfaction of the Adjudicating Officer that the real owner of the gold was someone other than the one who was guilty Of the contravention. The tenor of the wording of the proviso would clearly show that the burden 01 satisfying the Adjudicating Officer about the ownership of some other person is on the one from whose possession the gold has been seized or who was found to have contravened the provisions of the Gold (Control) Act or relevant Rules. This would be further clear from the initial presumption of ownership which is placed by Section 99 of the Gold (Control) Act on the person who has gold in possession, custody or control including gold ornaments. In the instant case, as is evident from the impugned order the appellants had failed to establish to the satisfaction of the Collector who adjudicated the case that the seized excess gold ornaments belong to the alleged customers. Thus, under these circumstances the question of issuing any Notice to the alleged customers did not arise.
8. The other contention of the learned counsel for the appellant that the contravention of Sections 8 and 55 of the Gold (Control) Act should have been punished under Section 75 and not under Section 74 of the Gold (Control) Act has also no force. Section 74 of the Gold (Control)Act provides that any person who, in relation to any gold does or omits to do any act which act or omission would render’ such gold liable to confiscation under this Act, or abets the doing or omission of such an act, shall be liable to a penalty not exceeding five times the value of the gold or one thousand rupees, whichever is more, whether or not such gold has been confiscated or is available for confiscation. Section 75 of the Gold (Control) Act is a residuary Section and provides penalties for contravention etc., not expressly mentioned elsewhere. In the instant case, the Collector who adjudicated the case had found that the seized excess gold ornaments were not accounted for in the statutory records. Likewise, the Issue Vouchers No. 42 to 48 issued from 16.5.82 to 23.5.82 involving a quantity of 25.750 grams were not entered in the statutory records. Unaccounted gold ornaments were also found. Thus, under these, circumstances, the imposition of penalty under Section 74 of the Gold (Control) Act, cannot be assailed.
9. In the facts and circumstances of the case we also find no justification to reduce either the amount of redemption fine or the amount of penalty.
10. In the light of the foregoing discussions the appeals are dismissed being devoid of any merits. As regards the Cross Objections no separate order is required to be passed as the same are nothing but in the nature of reply to the grounds taken in the appeal. The same shall be deemed to have been disposed of by this order.