S. Kalyanam, Member (T)

1. Appeal under Section 81 of the Gold (Control) Act, 1968 praying that in the circumstances stated therein, the Tribunal will be pleased to set aside the order of the Collector of Central Excise and Customs, Madurai, dated 29-10-1980 in C. No. XVII/8/10/80 GC. 2.

2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri K. A. Jabbar, Advocate, for the appellant and upon hearing the arguments of Shri J.M.K. Sekhar, Senior Departmental Representative for the respondent, the Tribunal makes the following Order :

3. The appeal filed before the Gold Control Administrator against the order of the Collector of Central Excise and Customs, Madurai, referred to supra, has been transferred to the Tribunal in terms of Section 82K of the Gold (Control) Act, 1968 for being disposed of as an appeal.

4. This is an appeal against the order of the Collector of Central Excise and Customs, Madurai, imposing a redemption fine of Rs. 40,000/- under Section 73 in lieu of confiscation of 2513.550 gms. of primary gold, and gold ornaments new and old, besides imposition of a penalty of Rs. 10,000/- on the appellant under Section 74 of the Act. The brief facts relating to the appeal are as under.-On 9-2-80, the Central Excise officers, on information, visited the licensed premises of the appellant, M/s. Paripoorna Abarna Maligai at Madurai. Both the partners of the firm. S.P.A.M. Krishnan Chettiar and his son, K. Murugesan, were present in the shop. The officers searched a room behind the show room and recovered some paper packets and carton boxes, kept concealed on the top of an iron girder in the room, which, on examination, were found to contain primary gold weighing 607.5 gms., new gold ornaments 347.3 gms. and old gold ornaments weighing 1558.250 gms. and 18 chits containing weighment particulars issued by authorised assayers. Since the above gold and gold ornaments were not accounted for, they were seized under mahazar as per law. A statement was recorded from the appellant on 10-2-80 wherein he confessed that the items under seizure were not accounted for and were purchased from various individuals and were kept concealed with a view to evade the provisions of law. A statement was also recorded from Murugesan, son of the appellant on 13-2-80 which was also inculpatory in nature corroborating the statement of the appellant in respect of the gold and gold ornaments under seizure. It is in these circumstances proceedings were instituted against the appellant which ultimately culminated in the impugned order now appealed against.

5. The learned Counsel appearing for the appellant submitted that :

(1) Notwithstanding the fact that the appellant is found to various such as Section 8(1), 31, 33, 36 and 55, the appellant being a licensed dealer, the quintessence of the accusation and the gravamen of the charge would boil down to an alleged violation of Section 55 of the Act, viz. non-accountal, and on facts and under law the appellant cannot be proceeded against for contravention of non-accounting under Section 55. It was urged that the accounts prescribed under Section 55 will have to be according to the prescribed forms under GS 11 and GS 12 which do not deal with a situation where the gold and gold ornaments are not kept for sale. The plea of the appellant being that the gold and gold ornaments under seizure are not "stock-in-trade" and are the personal household jewelleries of his co-brother and brother kept for making marriage jewelleries for them, Section 55 will not at all apply. The learned Counsel for the appellant also relied upon a ruline in this regard reported in MANU/SC/0057/1984 : AIR 1984 SC 1249 in the case of Manick Chand Paul and Ors. v. Union of India.

(2) The eighteen receipts under seizure did not relate to the seized gold and gold ornaments at all and reference to the same connecting them to seizure in the mahazar as well as in the statement recorded from the appellan