{"id":35214,"date":"1986-09-04T00:00:00","date_gmt":"1986-09-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/swaminathan-and-sons-and-ors-vs-collector-of-central-excise-on-4-september-1986"},"modified":"2017-02-07T03:56:26","modified_gmt":"2017-02-06T22:26:26","slug":"swaminathan-and-sons-and-ors-vs-collector-of-central-excise-on-4-september-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/swaminathan-and-sons-and-ors-vs-collector-of-central-excise-on-4-september-1986","title":{"rendered":"Swaminathan And Sons And Ors. vs Collector Of Central Excise on 4 September, 1986"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Tamil Nadu<\/div>\n
Swaminathan And Sons And Ors. vs Collector Of Central Excise on 4 September, 1986<\/div>\n
Equivalent citations: 1987 (12) ECR 266 Tri Chennai, 1986 (27) ELT 518 Tri Chennai<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 S. Kalyanam, Member (J)<\/p>\n
1. Since the above appeals arise out of a common order and arc inter-connected and relate to a single transaction, they are taken up together and disposed of by a common order.\n<\/p>\n
2.    The   appeals   are   directed   against   the   Order   of   the   Collector of  Central  Excise,  Cochin,   dated 4.4.1986  imposing a fine of Rs. 25,000\/- on   appellants   M\/s.   Swaminathan  &   Sons  in  lieu   of  confiscation  of   gold coins and ornaments weighing 367 grms. under Section 73 besides a penalty of Rs. 15,000\/- on appellant  M\/s. Swaminathan & Sons, Rs. 10,000 each on appellants   Selvarajan   and   Ramanujam   under   Section   74   of   the   Gold (Control) Act, 1968, hereinafter referred to as the Act.\n<\/p>\n
3.    Appellant   Nos.   4  to  13 [Appeal  Nos.  G\/93\/86  (MAS) to G\/l02\/86 (MAS)]   are   the   claimants   of   the   gold   under   seizure.   On   20.9.1982   at about 3.00 P.M., the Supreintendent of Central Excise, Quilon     and     party visited   M\/s.   Swaminathan  &   Sons,   Main  Road,  Quilon  and  inspected the accounts of  the  shop.  The authorities  found that  accounts were written only   upto   18.9.1982.   The   authorities   also   found   two   paper   packets   in a  secret  cavity  below the  bottom  of the  show  case adjacent to the cash counter, hidden by a wooden lid and the paper packets were found to contain gold  ornaments  and  gold  coins totally   weighing 367  grms.  Since the gold coins  and   ornaments   were   not   accounted   for   in the  statutory  accounts, they   were   seized   by   the   authorities   under   mahazar  as  per  law.   Appellants Selvarajan and Ramanujam gave a statement  before the authorities on  20.9.1982  that   the  gold  coins  and  ornaments were  not  accounted for. It    is   in   these   circumstances   after   further   investigations,    proceedings were   instituted   against   the   appellants   which  ultimately   culminated   in the present impugned order, now appealed against.\n<\/p>\n
4.    Shri    Santhanagopalan,    the    learned    counsel    for   the  appellants submits  that   no   licence   has   been   granted   under  the   Act   in   favour   of any firm  under the  name and style  M\/s. Swaminathan & Sons and merely because  a   licence  was  issued  in the joint   names of appellants Selvarajan and  Ramanujam and the  said two  persons are jointly doing business, that would   not   under   law   create  a   firm   within  the   meaning  of  Section  2(h) of the Act. It was further urged that the main charge against the licensed dealer   namely,   appellants   Selvarajan   and   Ramanujam   is   in   respect   of contravention   of   Section   55.   The   learned   counsel   contended   that   the gold  coins and  ornaments  under  seizure  were  indisputably  entrusted  with the  licensed  gold dealer only for the purpose of  repair and  not   for the purpose   of   re-making and   so the  question  of  making any  entry   in  Form GS   11   or GS   12   in terms  of  Rule   11   of  the Gold Control (Forms,  Fees and   Miscellaneous  Matters)  Rules,   1968  would  not  arise.  Dilating on this plea,   the   learned   counsel   further   submitted   that   Section   55   enjoins  on a   dealer   to   maintain   true   and   complete   accounts   of   the  gold  owned, possessed,   held   or   controlled   by   him   and   such   a   licensed   dealer   shall keep the  same  only   in  such   form  and   in  such   manner prescribed under Section  55   of  the  Act.  It   was  urged  that   under Rule  11,  the accounts of  gold  referred to  in Section 55 shall be kept  by a licensed dealer in Form GS  11  or GS 12. In respect of    the gold coins and ornaments under seizure,   it   was urged that  there  is no column at all either in GS  11  or GS   12  form  for a licensed dealer to make any entry therein and so the charge   of   contravention   of   Section   55   is   not   legally   sustainable   in  the facts and circumstances of this case.\n<\/p>\n
5.   The learned Counsel further contended that at the worst a contravention  can  be  said to be  made out   in  respect   of  Rule  12  which  enjoins on the dealer an obligation to maintain the Register of Repairs containing particulars   in   respect   of   ornaments   entrusted   with   the   licensed   dealer for  the   purpose   of   repair.   Even  in   respect   of  violation  of  Rule   12,  the learned   counsel   urged   that   inasmuch   as   this   has   not   been   specifically set   out   either  in the  show  cause   notice  or  considered   in the  impugned order  appealed against,  the  licensed  dealers,   the appellants herein cannot be   mulcted  with  penalty  for    such  a  contravention  in the  circumstances of this case. In any event, the learned Counsel contended that the accounts contemplated   by  Section   55   would   only   refer  to   accounts   specified   and prescribed  under Rule  11  and would  not  relate to the Register of Repairs prescribed   under  Rule   12.   It   was,  therefore,   contended  that   even  if  the contravention   is  held,   established   or  proved,  the  penal   consequence  that would be applicable would be only under Section 75 and not under Section 74 of the Act.\n<\/p>\n
6.   The learned Senior Departmental Representative Shri K.K.  Bhatia, urged  that   even  though   there   is   no   licensed   partnership  firm   under the name   and   style   of   M\/s.   Swaminathan  &   Sons,   inasmuchas  the   partners are  the licensed   dealers  and   have   responded  to the  show   cause   notice issued against the firm  M\/s. Swaminathan & Sons, the firm must  be construed to be in existence in the eye of law and the impugned order visiting the   firm   with  the   penalty   is  in  order.   The  learned  Senior Departmental Representative   further   urged   that   Section   55   is   general   in   nature   and comprehensive   in   its   scope   and   would   certainly   take   within   its   ambit all kinds of situations wherein gold or ornaments,  old or new and received by  a  gold  dealer  either  for the  purpose  of   remaking  or  for the  purpose of  repairs. In elaborating on this, the learned Senior Departmental Representative   contended   that   notwithstanding   the   fact   that   Rule   12,   which refers to the  register of  repairs,   does not  specifically mention Section 55 “Register of  Repairs”   would  come  within the  mischief and ambit   of the accounts contemplated  by Section 55  of the Act.  The  learned SDR  urged that   in the  instant   case,   when admittedly the licensed gold dealers have not   accounted   for   the   gold   coins   and   ornaments   under   seizure   in   any registers  much  less  in the  register of  repairs,  a  contravention  of  Section 55   is   clearly   established.   The   learned   SDR   also   faintly   contended  that the other appellants,  namely appellants in Appeal Nos. 93 to 102, though claimed   the   gold   coins  and  ornaments  under  seizure,  their  claims  have not   been  accepted   or conceded   by the  adjudicating  authority  under the impugned   order   and   the   adjudicating   authority   has   merely   exonerated the claimants of a charge of abetment and so the matter may be remitted back for re-consideration with a direction to give a specific finding with reference to the correctness or genuineness of the claims of the various claimants.\n<\/p>\n
7. I have carefully considered the submissions of the parties herein. I also went through the licence copy issued in favour of the appellants Selvarajan and Ramanujam. It is not the case of the Department that Selvarajan and Ramanujam have created among themselves any association or formed any partnership firm within the meaning of Section 2(h) of the Act. Merely because a licence has been granted in the names of two individuals who joined together and did business in gold, that would not ipso facto convert such a transaction or the business into partnership firm within the meaning of Section 2(h) clause (ii) of the Act. I therefore, hold that the proceedings instituted on the basis that a partnership firm  was in existence and the partnership firm was the holder of a gold dealer   licence  are   not   legally  tenable  as  against   the   firm   and   in this view   of  the   matter,   I   set   aside the  penalty   imposed  on the  firm.   The adjudicating   authority,   as   rightly   contended   by  the   learned   counsel   for the   appellants  has  accepted  the   claim   of  the  various  claimants to the ornaments  under  seizure and therefore,  the order of  confiscation of the ornaments and  release of the same on payment  of fine in lieu of confiscation  is   not   legally   correct.   I  agree  with the  submission of  the  learned Counsel  for the appellants that  when it  has been established to the satisfaction of the officer adjudging the  confiscation of the ornaments under seizure  that   they  belong to  various claimants,  the  ornaments should  not have  been   ordered  to  be  confiscated   in  view  of the  proviso to Section 71   of  the  Act.   The  plea  of the  learned  counsel  for the appellants that contravention   of  Section  55   of  the  Act   would   not   come   into  operation in the  facts  and  circumstances  of  this case and that  under Section 55, a   licensed   dealer   will   have  to   maintain  a  true  and   complete  account of  the   gold   under  his   possession   or   custody   only   in terms  of  Rule   11 and   in   conformity   with   GS   11   and   GS   12   forms,   referred  to   supra,   is not   well   founded.   In   my   opinion,   GS   11   and  GS   12   forms  prescribed  by Rule 11  for maintenance of true accounts as enjoined on a licensed dealer under   Section   55   would   govern   a   different   situation.   GS   11   will   come into play in respect of maintenance of accounts of gold and old ornaments or articles for melting and GS  12 will come into play in respect  of ornaments  or articles  for  sale.  Rule   12  deals with  the Register of Repairs and in terms of Rule 12,  every licensed dealer who receives any articles or   ornaments   for   effecting   any   repairs  thereto   shall   maintain  accounts in a register containing particulars such as date of receipt of the article or   ornaments,    name   and   address   of   the   persons   from   whom   received or to whom returned, number and description of the articles or ornaments etc. When Section 55 enjoins on a dealer to maintain a true and complete account of the gold owned, possessed, held, controlled or otherwise acquired or accepted or received, the old ornaments received by a licensed dealer, as in the  instant  case,  for purpose of repairs, would certainly be covered by   the   scope   of   Section   55   attracting  the   maintenance  of  Register  of Repairs  in terms of Rule  12.  The  plea of the learned Counsel that Rule 12 has to be read in isolation of Section 55 does not appeal to me. The learned Counsel  urged that   inasmuch  as Rule  11   would particularly refer to Section 55,  the omission of any such  reference to Section 55  in Rule 12   is  conspicuous  and   significant   and  would  only   mean that  Rule  12  is not contemplated by Section 55 at all. I am afraid I cannot countenance this   plea.   The   wording   of   Section  55   is   very   wide  and   comprehensive and   would   embrace   and   cover   all   situations  by  enjoining  on  a  licensed dealer,   a   statutory   obligation to  maintain a true  and  complete  account of  all  the  gold  owned,   possessed,   controlled or acquired by  him.  In the instant   case,   when   admittedly   the   licensed   dealers   possessed   and   held gold ornaments for purposes of  repair, the particulars of those ornaments should   have   been  duly   accounted   for  and   it   is  only   in this  context,   a register  styled as Register of Repairs under Rule  12, containing relevant particulars  is contemplated and advisedly,   if I   may say so,  provided for. Therefore,  the  mention  or   non-mention  of  Section  55   in Rule  12  would not   be  the   determinative   factor   with   reference  to  the  applicability or non-applicability   of   the   statutory   obligation  cast    on   a   licensed   dealer under Section 55  of the Act. One of the well accepted canons of  interpretation of a Statute or Rule is that the interpretation that would subserve the purpose for which the rule has been incorporated and the interpretation  that   would   provide   for  the   mischief  to  be  averted  will  have to  be   adopted.   If   for  the   purpose   of   argument,   the   interpretation  put on Rule 12 by the learned Counsel were to be accepted and Rule 12 were to be construed in isolation of Section 55, it would lead to an anamolous situation of a licensed gold dealer keeping ornaments in the guise of repair, totally unaccounted, with only an eventual liability if at all, to pay a penalty of Rs. 1000\/- in terms of residuary Section 75 of the Act. I am afraid, the scope of the Gold (Control) Act cannot be construed in such a narrow fashion so as to put it in a straight jacket leading to an anamolus situation as the one illustrated above, paving the way for infraction of the provisions of the Act. I therefore, hold that the appellant has been clearly proved to have contravened Section 55 of the Act read with Rule 12 of the Gold (Control) Act, 1968. The plea of the learned SDR that the adjudicating authority has not accepted the claims of the various claimants but has merely chosen to exonerate them of a charge of abetment is not acceptable in the face of the very impugned order itself. In the instant case, immediately on seizure, the licensed dealers have come forward with the version that the ornaments under seizure belonged to the various claimants, (the various appellants herein) giving their names and relevant- particulars and the same has also been verified and found to be true. The show cause notice issued to the various claimants would also traverse only these averments and in the impugned order also, the case of the claimants has been construed only in the context of their claim of ownership besides the charge of abetment. The adjudicating authority has nowhere held nor even adverted to indirectly in any way that the claim of the various claimants is not acceptable. Therefore, in summing up, I hold not only on the basis of admission of the appellants themselves before the adjudicating authority as well as in the Grounds of Appeal before me but also on the other facts and circumstances of this case, the charge of contravention of Section 55 has been clearly made out. I therefore, uphold the finding of adjudicating authority in respect of the charge of contravention under Section 55 as against licensed gold dealers, namely, Selvarajan and Ramanujam, the appellants herein. So far as the other appellants who are merely claimants are concerned, I do not think that any specific order is called for since the claims of the various claimants has been accepted by the adjudicating authority under the impugned order.\n<\/p>\n
8. The learned Counsel at this stage pleaded that the licensed gold dealers, the appellants Selvarajan and Ramanujam are in the gold business for the past about 25 years and have never been found guilty of any contravention at any time in the past. It was further urged that even in respect of the ornaments under seizure, the said appellants, immediately on seizure, came forward with the version that they belonged to various claimants, giving the particulars of their names and the quantity of each of the claimants. The further fact remains that the purity of the ornaments is only 18 to 20 ct. The licensed gold dealer’s have already offered an explanation immediately on seizure that the entries could not be made in respect of the gold ornaments under seizure by reason of the fact that the concerned clerk was on leave for couple of days and this fact has not been disputed or controverted in any way in the impugned order. I also further find that even though the ornaments under seizure have not been specifically accounted for in the Repair Register, the licensed dealers have issued necessary vouchers to the parties for receipt of the same and this fact has been verified by the authorities during investigations. Taking the cumulative effect of all the aforesaid circumstances, I am inclined to hold  in the facts and circumstances of this case, that the breach committed by the appellants in not making entry of the ornaments in the repair register is venial in nature and technical in character warranting a sympathetic consideration. The learned Counsel for the appellants at* this stage made a fervent plea that the venial breach of the appellant in the facts and circumstances of this case should not be construed to be a penalty dis-entitling them in respect of their renewal of a licence and in the circumstances of this case, I hold that this contravention which is of a technical nature is not a dis-qualification.\n<\/p>\n
9.   In this view of the matter, I modify the impugned order appealed against   in   respect   of   the   quantum   of   penalty   and   reduce  the  penalty imposed   on  the   appellants  Selvarajan  and  Ramanujam   from   Rs. 10,000\/- to Rs. 2500\/- each.\n<\/p>\n
10.  In the  result,  Gold (Control)  Appeal  Nos. 90\/86 (MAS) is allowed and 91   and 92 of  1986 are dismissed with modifications indicated above. Since the case of the appellants in Appeal Nos. 93 to 102\/86 has already been  accepted   by  the  adjudicating  authority  under the  impugned  order, the appeals are dismissed as mis-conceived in law.\n<\/p>\n
11.  Except  for the above modifications all the appeals except  A.No. 90\/86 are otherwise dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Tamil Nadu Swaminathan And Sons And Ors. vs Collector Of Central Excise on 4 September, 1986 Equivalent citations: 1987 (12) ECR 266 Tri Chennai, 1986 (27) ELT 518 Tri Chennai ORDER S. Kalyanam, Member (J) 1. Since the above appeals arise out of a common order and arc inter-connected […]<\/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-35214","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nSwaminathan And Sons And Ors. vs Collector Of Central Excise on 4 September, 1986 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/swaminathan-and-sons-and-ors-vs-collector-of-central-excise-on-4-september-1986\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Swaminathan And Sons And Ors. vs Collector Of Central Excise on 4 September, 1986 - 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