M. Santhanam, Member (J)

1. This is a revision petition filed before the Government of India which on transfer is being treated as an appeal. The appeal is directed against the orders dated 3.4.82 of the Appellate Collector, New Delhi.

2. The Assistant Collector of Customs, New Delhi by his order dated 29.4.81 confiscated 63.600 grams of gold under Section 71 of the Gold (Control) Act 1968, with an option to M/s. Bharat Jewellery House to redeem the same on payment of redemption fine of Rs. 1,500. A personal penalty of Rs. 1,500 was imposed on the appellant for contravention of the Sections 8, 31, 33 and 55 of the Gold (Control) Act, 1968 and Rules 11 and 134 of the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968. The Appellate Collector reduced the personal penalty from Rs. 1500 to Rs. 500.

3. The facts of the case are as follows :

The appellant is a gold dealer, having his business under the name and style M/s. Bharat Jewellery House at 257, Sabzi Mandi, Delhi. On 22.8.80 the appellant who is a partner in the firm was present when the Gold control authorities checked the statutory returns of the firm. On verification, new gold ornaments weighing 34.800 grams and old gold ornaments weighing 28.800 grams were found in excess of the recorded balance in the statutory register. The said excess gold ornaments were seized on the ground that the appellant could not satisfactorily explain their lawful possession. An enquiry followed. In his statement the appellant admitted the excess stock but he explained that the new ornaments were given to his son in his absence by some goldsmith for being shown as samples to customers. In respect of the old gold ornaments, he had stated that they belonged to his acquaintance and that he did not enter the same in the register because he was busy. A show cause notice was issued as to why the ornaments should not be confiscated and a personal penalty levied. The appellant in his reply re-iterated that the new gold ornaments belonged to one Shri Satish Kumar and that they were retained by him as samples of the manufacture. With regard to the old gold ornaments he contended that they belonged to S/Shri Nanak Chand Gupta and B.B. Gupta who had given them to the appellant for necessary repairs. As the appellant had no facility for effecting the repair, he retained the ornaments only to return them to the owners. It must be mentioned that Shri Satish Kumar also sent a letter claiming the new gold ornaments and pointed out that necessary entries had been made in his register for the same. Shri Bodh Raj (B.B. Gupta) gave a statement that the old gold ornaments belonged to him and that the same were given to the appellant for repairs. Since the wages could not be settled, the ornaments remained with the appellant. The Assistant Collector held that the explanation offered by the appellant could not be accepted and imposed a personal penalty as pointed out above. The Appellate Collector confirmed the findings but reduced the penalty.

4. Shri Daya Sagar, Consultant appeared for the appellant while Shri J.P. Anand, JDR for the department.

5. Shri Daya Sagar mainly pointed out that no show cause notice was issued to Shri Nanak Chand or Shri Bodh Raj Gupta or Shri Satish Kumar as required under Section 79 of the Gold (Control) Act. He argued that Shri Satish Kumar produced a G.S. 13 register which corroborated his statement regarding the ownership of the new gold ornaments. Shri B.B. Gupta and Shri Nanak Chand claimed the old gold ornaments. Their statement was confirmed by the engraving of the name of Smt. Maya Devi, wife of Shri Nanak Chand on one of the gold rings. The learned Consultant also relied on the decision reported in 1983 ELT 687 (Sushil Kumar and others v. Collector of Central Excise and others), MANU/CE/0177/1984 : MANU/CE/0177/1984 : 1985 (19) ELT 200 (Tribunal) (Hazari Lal Gauri Shankar Badaun v. Collector of Central Excise, Kanpur) and 1983 ELT 1760 (SC) (Shanti Lal Mehta v. Unio