ORDER
S. Kalyanam, Member (J)
1. The above appeals have been preferred-by the Collector of Central Excise, Cochin, and are directed against the order of the Collector of Central Excise (Appeals), Madras, dated 16-11-87.
2. M/s. Lakshmi Jewellery the First Respondent is a licensee under the Gold (Control) Act, 1968, the ‘Act’ for short, at Nellore and Shri Kamalchand the Second Respondent herein is an employee under Lakshmi Jewellery. On 17-5-85 the Second Respondent Kamalchand was intercepted at Trichur by the Central Excise Officers on prior intelligence and a total quantity of 1671 gms, of new gold ornaments in trade quantities were recovered from his possession. The authorities effected seizure of the same as Kamalchand did not have any valid voucher or permit to possess the said ornaments in trade quantities and since the authorities had reason to believe that they were intended for purposes of sale in contravention of law. Respondent Kamalchand also gave an inculpatory statement before the authorities confessing to the fact that he brought all these ornaments as employee of the First Respondent Lakshmi Jewellery for purposes of sale in Kerala. Proceedings were instituted by issue of Show Cause Notice against the Respondents herein which unlimately culminated in an order of adjudication by the Collector of Central Excise, Cochin, dated 3-11-86 in which he imposed a fine of Rs. 1,00,000/- in lieu of confiscation of the gold ornaments and penalty of Rs. 50,000/- on First Respondent Lakshmi Jewellery and Rs. 25,000/- on Second Respondent Kamalchand. We are not concerned in this appeal about the proceedings against the other persons covered by the said order of the Collector of Central Excise. The Respondents herein preferred an appeal against the said order of the Collector of Central Excise and the same was disposed of by the Tribunal by order dated 15-7-87 in Order No. 480/87 in which the Tribunal confirmed the findings of the adjudicating authority, but modified the quantum of penalty imposed on the respondents herein. In respect of the seizure of gold ornaments effected from Respondent Kamalchand, Show Cause Notices were is- sued preceding adjudication by two authorities viz. one by the Assistant Collector of Central Excise, Trichur, on 14-10-85 and another by the Collector of Central Excise, Cochin, dated 8-11-85. Subsequent to the order of the adjudication by the Collector of Central Excise referred to above against the respondents, proceedings were also separately initiated by the Assistant Collector of Central Excise, Trichur, which resulted hi the order of adjudication dated 22-5-87 imposing a penalty of Rs. 10,000/- on respondent Lakshmi Jewellery and Rs. 5,000/- on respondent Kamalchand. The Respondents herein preferred an appeal against the same before the Collector of Central Excise (Appeals), Madras, who under the impugned order dated 16-11-87 set aside the same on the ground that inasmuch as the respondents herein had been earlier proceeded against in adjudication by the Collector of Central Excise, Cochin, the Assistant Collector of Central Excise, Trichur, cannot proceed against them for the same transaction once -A. over. It is this order of the Collector of Central Excise (Appeals) that is challenged before us in appeal
3. Shri K.K. Bhatia, the learned S.D.R., rested his plea on the ground urged in the appeals and submitted that though the Respondents were proceeded against in adjudication and penalties were imposed on them, the Collector of Central Excise evidently did not take 119.600 gms. of gold ornaments which the second respondent Kamalchand had sold unauthorisedly to one M/s. Emerald Jewellery at Trichur and therefore, the earlier order of adjudication by the Collector of Central Excise referred to supra should be construed to be one only with reference to the quantity of ornaments seized from respondent Kamalchand and therefore, separate proceedings by the Assistant Collector in respect of 119.600 gms. sold in contravention of law to M/s. Emerald Jewellery would be in order. The learned S.D.R. placed reliance on para 35 of the order of the Collector of Central Excise, dated 3-12-86.
4. Shri Vasudevan, the learned Consultant for the Respondents, submitted that in respect of the violation committed by the Respondents under the provisions of the Act proceedings were initiated by issue of Show Cause Notice by the Collector of Central Excise culminating in an order of adjudication dated 3-11-86 which was also appealed against before the Tribunal resulting in a final order by the Tribunal In such a circumstance initiation of action once moreover in respect of the same transaction against the respondents is not permissible in law and would be a clear case of double jeopardy.
5. We have considered the submissions made before us. We have gone through the Show Cause Notice issued by the Collector of Central Excise, dated 8-11-85 against the respondents herein in respect of the seizure of ornaments from the second Respondents Kamalchand and other connected circumstances of the case. When proceedings instituted against the Respondents resulted in an order of adjudication by the Collector of Central Excise, Cochin dated 3-11-86, we are at a loss to understand as to how proceedings could be instituted in respect of the same transaction against the respondents once again by the Assistant Collector, Trichur under law. The plea of the learned S.D.R. that the subsequent or second proceeding against the respondents is only in respect of 119.600 gms. and would be tenable in law has to be just mentioned to be rejected as devoid of any substance in law. The proceedings under the Act are penal in nature and the allegations against the respondents in the Show Cause Notice issued by the Collector referred to supra would take within its ambit not only the total quantity of ornaments seized from respondent Kamalchand but also the quantity sold by respondent Kamalchand to others including M/s. Emerald Jewellery to whom a quantity of 119.600 gms. was sold. As rightly pointed out by Shri Vasudevan, the learned Consultant for the Respondents, the order of adjudication against respondent Lakshmi Jewellery is only in respect of the entire total quantity taken to Kerala for disposal in contravention of law which included not only the quantity actually seized from the possession of respondent Kamalchand but also the quantities sold by respondent Kamalchand to various others including M/s. Emerald Jewellery at Trichur. We went through para 35 of the order of adjudication by the Collector of Central Excise, Cochin, relied upon by the learned S.D.R. and we do not find anything there to lend even a remote assistance to the plea of the learned S.D.R. In para 35 of that order the Collector has merely held that he refrained from taking action against M/s. Emerald Jewellery with whom we are not concerned in the present case, since that case was being dealt with separately. For better appreciation, we would like to extract verbatim para 35 of the said order:
“35. M/s. Emerald Jewellery, Trichur admitted to have purchased 119.600 gms. of new gold ornaments from Shri Komalchand without any voucher. It is seen that they have not issued any receipt voucher and they have also not accounted for these gold ornaments in the records maintained under the Gold (Control) Act. Since the above gold ornaments were seized as a result of follow-up action and this case is being dealt with separately, I refrain from taking any action against M/s. Emerald Jewellers in this order.”
Presumably, the Assistant Collector should have been under a mis-apprehension that the proceedings against M/s. Emerald Jewellery would also cover the respondents herein inasmuch as the ornaments belonged to the first respondent and were sold through the second respondent in contravention of law. The Assistant Collector of Central Excise, Trichur, would appear to have lost sight of the fact that the respondents had already been proceeded against for the act of contravention, by the competent authotrity in adjudication which was also appealed against and the whole thing reached a stage of finality before the Tribunal by an order against the respondents. The proceedings being penal in nature and the transaction being one and the same so far as the respondents are concerned, the authorities do not have jurisdiction in law to initiate proceedings once over and visit them with penalty again for a second time in respect of the same transaction and such an act would certainly amount to double jeopardy not conceivable in our system of jurisprudence besides being a constitutional anathema opposed to all cannons of fair play and justice. We, therefore, do not find any merit in the appeals-and the appeals are accordingly rejected.