{"id":30191,"date":"1985-08-08T00:00:00","date_gmt":"1985-08-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-sadananda-pai-and-ors-vs-collector-of-central-excise-on-8-august-1985"},"modified":"2019-03-16T05:54:26","modified_gmt":"2019-03-16T00:24:26","slug":"m-sadananda-pai-and-ors-vs-collector-of-central-excise-on-8-august-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-sadananda-pai-and-ors-vs-collector-of-central-excise-on-8-august-1985","title":{"rendered":"M. Sadananda Pai And Ors. vs Collector Of Central Excise on 8 August, 1985"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Tamil Nadu<\/div>\n
M. Sadananda Pai And Ors. vs Collector Of Central Excise on 8 August, 1985<\/div>\n
Equivalent citations: 1986 (6) ECR 189 Tri Chennai, 1986 (26) ELT 602 Tri Chennai<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 S. Kalyanam, Member (J)<\/p>\n
1. The revision application filed before the Government of India against the order of the Gold Control Administrator referred to supra stands transferred to the Tribunal in terms of Section 82K of the Gold (Control) Act, 1968, hereinafter referred to as the Act, for being disposed of as if it were an appeal.\n<\/p>\n
2.    The   Additional   Collector   of    Customs,    Cochin,    by    his   order C.No.   XVII\/3\/2\/75   GC   dated   5.12.75   imposed   a   redemption   fine   of   Rs. 25,000\/-  on  the  appellant  under  Section 73  of  the Act, besides imposition of  a  penalty   of   Rs.   1,000\/-  each  on   all  the  appellants  under  Section 74 of   the   Act.   On   appeal   by   the   appellants,   the   order   of   the   Additional Collector  was  confirmed  by  the  Gold Control Administrator against which the  appellants  preferred  a  revision  before  the Government  of India which was   dismissed,   against   which   the   appellants   filed   a  writ  petition   in   the High Court of  Kerala in O.P. NO. 4090\/80R and the High Court of Kerala by its order dated  4.2.83 set aside the  impugned order of the Government of   India   and   remitted   the   matter   back   to   the   revisional  authority,  viz. Government  of  India,  for  consideration  afresh the plea of the appellants viz-a-viz   Section  16(3)   and   (7)   of   the   Act. and  accordingly   the   revision application  that  stood transferred before the Government of India pursuant to the order of  the High Court stands again retransferred to the Tribunal as stated above.\n<\/p>\n
3.   Sadananda   Pai   died   on   28.1.85   and   the   other   appellants   who are   his   legal   heirs   are   permitted   to   prosecute   the   appeal   on  behalf   of Sadananda Pai as his legal representative.\n<\/p>\n
4.   On   21.10.74,   the   Superintendent   of   Central   Excise,   Ernakulam, with   his   officers   visited   the   residential   premises   of   the  appellants,  who are   licensed   gold   dealers   and   found   that   a  total  quantity  of   1263  gms. comprising   new   and   old   gold   ornaments,   gold   articles,   gold   sovereigns and primary gold bars   had not been declared as per law in terms of Section 16(7)  of  the  Act.  Sadananda Pal,  father  of  the  other  appellants  gave  a statement   before   the   authorities   that   the   excess   gold   ornaments   found during   the   search   by   the   authorities   from   the   residential   premises   and possessed by him were not declared by oversight. Proceedings were instituted against the appellants as per law by the authorities by issue of show cause notice   which   ultimately   culminated   in   the   impugned   order   now   appealed against.\n<\/p>\n
5.   The   learned   counsel   for   the   appellants   submitted   that   out   of the  1263 gms: of gold ornaments, etc., about 571 gms. have been properly accounted   for   by   the   appellants   as   representing   ornaments   gifted   to  a child  in  the  family  on  6.10.74  in  connection with the cradling and ‘annaprasannam’   ceremonies   in   accordance  with  the  family   tradition  and   convention   in   Kerala.   Regarding   the   balance,   it   was   urged   that  weighment by   the   authorities   was   incorrect’ and  a  co-relation   statement  was  filed by   the   appellants   to   prove   the   correctness   of   the  declaration filed  by them   earlier   in   accordance   with   law.   The   learned   counsel  assailed  the impugned order as legally untenable on the ground that the personal diaries of Kurup and Sreedharan, Inspectors who conducted the search were not summoned despite a request therefore from the appellants. He further urged that there was no specific finding in the impugned order about the appellants’ contravention of Section 16(7) and therefore, the impugned order is liable to be set aside. The learned counsel assailed the impugned order as bad in law since a copy of the mahazar was not given to all the appellants. It was also submitted that when search and seizure were effected from the residential premises where all the appellants were residing, the charge should specifically indicate the nature of offence committed by each of the appellants with precise particulars, the absence of which in the show cause notice as well as in the adjudication order would invalidate the impugned order.\n<\/p>\n
6.   The  learned  counsel   urged   that  at  best   one  can  only  entertain a   suspicion   against   the   appellants   regard   the   alleged   contravention   and suspicion   can   never   take   the   place   of   proof.   Finally   he   submitted   that principles   of   natural   justice   having   been   violated   remand   of   the   appeal to   the   adjudicating   authority   at   this   distance   of   time   would   be   unjust and unfair.\n<\/p>\n
7.   The learned DR submitted that the particulars in the declaration filed  by  the  appellants have been spelt  out  in  the mahazar and over and above the quantum specified in the declaration of the appellants, a quantity of   1263  gms.  has  been  found  not  declared  and  as such,  the charge under Section  16(7)   of   the   Act   is  clearly   proved.   He   further   urged  that  when appellant Sadananda Pai has categorically admitted in his statement before the  authorities  on  22.10.74  that due to oversight he had not declared the excess ornaments and when this statement is proved to be true and voluntary, the   charge   should   be   held   properly   proved.   Regarding   the   diaries   which the   appellants   wanted   to   be   summoned,   the   learned   DR   submitted   that both the searching officers Kurup and Sreedharan have been cross-examined on   behalf   of   the   appellants  by  their  advocate  on  8.9.85  and  as  such  the plea   of   the   appellants   is   factually   incorrect.   It   was   further   submitted by   the   learned   DR   that   even   assuming   that, a  copy   of  the  mahazar  has not been furnished to all the appellants, when the contents of the mahazar have  been  clearly   set   out   in  the  show  cause  notice,  the appellants  have been clearly  made aware of  the same and in the absence of  proof of any prejudice,  non-furnishing  of  a copy  of  the  mahazar would not in any way affect the impugned order. He also joined issue with the appellants regarding the   allegation   relating   to   vagueness   of   the   charge   and   contended   that apart from the show cause notice expressly making clear the charge against the   appellants   under  Section  16(7)  of  the  Act,  the  adjudicating  authority has   also   found   about   the   non-declaration.   Finally   the   learned   DR   urged that  there  is  no  violation  of  the  principles  of  natural justice in the case and  even  if  the  Tribunal  were  to hold that certain factual positions have to be clarified, at best the matter can only be remanded for readjudication and the impugned order cannot be set aside once and for all.\n<\/p>\n
8.   I  have carefully considered the submissions of the parties herein. As   rightly   contended   by   the   learned   DR   the   weight   of   the   ornaments and   connected   particulars  given   in   the  declaration   have  been   set   out  in the   mahazar  and  proceedings  have  been  instituted  against  the  appellants only  in  respect  of   1263  gms.  of  gold  ornaments,  which,  according  to the Department,   have   not   found   a   place   in   the   declaration.   It   is   no   doubt true   that   the   appellant   has   taken   up   a  plea  at   the   earliest   opportunity that   seven   sovereigns   and   some   gold   ornaments   were   presented   to   the child   born   in   the   family  on   6.10.74,  even  though  the  appellant  was  not able to substantiate the exact quantity and weight. If seven gold sovereigns and some ornaments were presented to the child in the family on 6.10.74, the appellant would have time to make a declaration thereof as per law within 30 days from the date of such acquisition in terms of Section 16(10) of the Act. Therefore the appellant should be given the advantage of time in making a declaration in respect of the seven sovereigns and other ornaments gifted to the child on 6.10.74. It is relevant to note in this context that the High Court of Kerala has adverted to this aspect of the matter and remitted the matter for fresh consideration in the light of the specific plea Of the appellant. This aspect of the matter has not been properly considered by the original adjudicating authority or by the appellate authorities as held by the High Court of Kerala. Notwithstanding this, the question for consideration would be whether the appellants can be held to have contravened Section 16(7) of the Act de hors the acquisition by gift on 6.10.74. As pointed out by the learned DR., appellant Sadananda Pai has in categorical terms admitted before the authorities in his statement of 22.10.74 that excess gold ornaments possessed by him had not been declared due to oversight. The learned counsel for the appellants was not able to convince me that this statement of Sadananda Pai was either not voluntary or untrue. He merely submitted that this solitary statement should not be taken into consideration to fasten a liability on the appellants. On consideration of the records, I find that there is nothing to indicate that this statement is either not voluntary or true. I therefore hold that this statement of Sadananda Pai to be true and voluntary and find that it is admitted by appellant Sadananda Pai himself that there has not been a full declaration with reference to the entire quantity of gold ornaments and articles under seizure. The contention of the learned counsel that there is no specific finding by the adjudicating authority of a charge of contravention of Section 16(7) of the Act is not acceptable. It is no doubt true that the adjudicating authority could have given a more precise finding with reference to the contravention of Section 16(7) of the Act, but none-the-less that would not detract from the acceptability of the order of adjudication. The adjudicating authority has also found that 1263 gms. of gold have not been declared and further held that they have been deliberately kept outside the accounts for obvious purposes of clandestine sale. Perhaps this observation of the adjudicating authority has impelled the learned counsel for the appellants to contend that the finding would appear to be more for an alleged contravention of. Section 55 of the Act and not for a charge under Section 16(7) of the Act. I have carefully gone through the finding portion of the order of adjudication and even though the findings could have been more precisely worded, 1 am not inclined to hold on that ground that there was no appelication of mind of the adjudicating authority into the charge under consideration. The reasoning and the concluding portions of the order make it clear that the adjudicating authority was, on consideration of the materials, satisfied about the contravention of the charge under Section 16(7) of the Act. The contention of the learned counsel for the appellants that because a copy of the mahazar was not furnished to all the appellants, the impugned order must be declared bad in law is not legally tenable. Mahazar is only a contemporaneous document that comes into existence at the time of  effecting search or seizure of incriminating articles and when the contents of the mahazar have been clearly set out in the show cause notice which has been responded to by all the appellants and when the appellants have never made a grievance of the alleged non-furnishing of a copy of the mahazar at any time and indeed have actively participated in the adjudication enquiry without demur, it is not open to the appellants at this stage to contend that the fact of mere- non-furnishing of a copy of the mahazar would ipso facto invalidate the impugned order. It is settled proposition of law that when the party has been put on notice with reference to the various ingredients and other circumstances relating to the charge and when the party has without any demur participated in adjudication proceedings, it is not open to him to assail the validity of the order on grounds of non-furnishing of a copy of the documents unless he is able to prove prejudice thereby. The contention of the learned counsel with reference to the vagueness of the charge is, in my opinion, without any substance. This is a case where the father Sadananda Pai and his sons, the other appellants herein, were partners of the firm and’ the father and the sons were admittedly residing in the house where the search and seizure were conducted. In such a situation, when under law every partner has to make a declaration of even his personal possession of gold and gold ornaments in terms of Section 16(7) of the Act, the plea that the charge has not specifically stated about the quantum of non-declaration in respect of each of the partners is untenable in the factual context and background of this case. Though the learned counsel contended that there has been violation of principles of natural justice, he was not able to substantiate the same in the light of any materials available on record. This is a case where pursuant to a search effected in the residential premises of the appellants a quantity of 1263 gms. of gold ornaments, etc. were found by the authorities not declared in terms of Section 16(7) for which proceedings were instituted against the appellants by issue of a proper show cause notice. The appellants have participated in the adjudication proceedings through their counsel, have cross-examined the officers who effected the search, and in such a situation if the appellants put forth a plea that the ornaments found in their residential premises have been duly declared, it is for them to prove it, particularly when the earlier declaration forms filed by the appellants, relied upon by the adjudicating authorities and referred to in the mahazar do not evidence the same. On consideration of the entire materials on record I am inclined to hold that the charge of contravention under Section 16(7) of the Act has been made out.\n<\/p>\n
9. Since I have already found that the appellants have been satisfactorily able to explain that seven sovereigns and certain other items of gold ornaments were gifted to the new born child in the family on 6.10.7 <\/p>\n
10. The learned counsel submitted that the appellants have been in gold business for nearly about 100 years and have never been involved in any contravention at any point of time nor have they ever come to the adverse notice of the Department. Taking into consideration the clean past antecedents of the appellants, coupled with the fact that the ornaments under seizure are of varying purity from 14 ct. to 22 ct., and having regard to the nature and quantity-of ornaments involved and the nature of contravention 1 am inclined to take a lenient view regarding the quantum of redemption fine and penalty. It should be observed that the submission of the learned counsel for the appellants that for a charge of non-declaration in respect of a small quantity of gold ornaments of low purity, it will not be legal or just to penalise all the partners is not without force. In the factual background and circumstances of this case and having regard to the fact that Sadananda Pai was the head of the family managing the licensed firm, I hold that he alone shall be liable for contravention of a charge under Section 16(7) and in the absence of any satisfactory convincing materials individually against the other partners they should be given the benefit of doubt and exonerated. Accordingly I set aside the penalty of Rs. 1,000\/- each imposed on the other appellants except appellant Sadananda Pai by giving them the benefit of doubt. So far as appellant Sadananda Pai is concerned, after giving due allowance for the seven sovereigns and other ornaments gifted to the child in the family on 6.10.74, 1 am inclined to hold that interests of justice would be met if the redemption fine is considerably reduced. In giving reduction in the quantum of redemption fine 1 also take into consideration factors like the long established tradition of the appellants’ family in gold business with unblemished record as well as the quantity, purity and nature of the ornaments, the place where from the ornaments were recovered, viz., the residential premises of the appellants vis-a-vis the charge of non-declaration. Accordingly I reduce the redemption fine from Rs. 25,000\/- to Rs. 10,000\/- (Rupees ten thousand only) and consequently the penalty is reduced to Rs. 100\/-(Rupees one hundred only). Except for the above modifications, the appeal is otherwise dismissed.\n<\/p>\n
11. In my opinion, the technical breach of contravention Of Section 16(7) of the Act in the facts and circumstances of the case relating to the year 1974 should not at this distance of time be held to be an offence for purposes of non-renewal of the licence of the appellants.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Tamil Nadu M. Sadananda Pai And Ors. vs Collector Of Central Excise on 8 August, 1985 Equivalent citations: 1986 (6) ECR 189 Tri Chennai, 1986 (26) ELT 602 Tri Chennai ORDER S. Kalyanam, Member (J) 1. The revision application filed before the Government of India against the order of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-30191","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nM. 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