1986 (9) TMI 243 - AT - Central Excise

Penalty overturned for M/s. Swaminathan & Sons. Contravention upheld for Selvarajan and Ramanujam. Reduced penalties due to mitigating factors.

The penalty imposed on the firm M/s. Swaminathan & Sons was set aside as the Department failed to establish a partnership firm. Contravention of ... Gold Control Issues Involved:1. Legality of the penalty imposed on the firm M/s. Swaminathan & Sons.2. Contravention of Section 55 of the Gold (Control) Act, 1968.3. Applicability of Rule 12 of the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968.4. Ownership and confiscation of the seized gold ornaments and coins.5. Quantum of penalty imposed on the appellants Selvarajan and Ramanujam.Issue-wise Detailed Analysis:1. Legality of the penalty imposed on the firm M/s. Swaminathan & Sons:The appeals challenge the Order of the Collector of Central Excise, Cochin, imposing a fine and penalties under the Gold (Control) Act, 1968. The main contention is that no license was granted under the Act to any firm named M/s. Swaminathan & Sons. The appellants argued that merely because a license was issued in the joint names of Selvarajan and Ramanujam, it does not create a firm within the meaning of Section 2(h) of the Act. The judgment concludes that the proceedings against the firm are not legally tenable since the Department did not establish that Selvarajan and Ramanujam formed a partnership firm. Consequently, the penalty imposed on the firm was set aside.2. Contravention of Section 55 of the Gold (Control) Act, 1968:The appellants argued that the gold coins and ornaments under seizure were entrusted to the licensed dealer for repair, not for remaking, and thus did not require entry in Form GS 11 or GS 12. The judgment clarifies that Section 55 requires a licensed dealer to maintain true and complete accounts of the gold in their possession, which includes gold received for repair. The court held that the appellants contravened Section 55 by not accounting for the gold ornaments in any register, including the Register of Repairs under Rule 12.3. Applicability of Rule 12 of the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968:The appellants contended that Rule 12, which requires maintaining a Register of Repairs, should not be read in conjunction with Section 55. The judgment disagrees, stating that Section 55's broad scope includes all gold transactions, and Rule 12's Register of Repairs falls within this ambit. The court emphasized that interpreting Rule 12 in isolation would lead to an anomalous situation where gold dealers could evade accountability under the guise of repairs. Thus, the contravention of Section 55 read with Rule 12 was upheld.4. Ownership and confiscation of the seized gold ornaments and coins:The adjudicating authority had accepted the claims of various appellants regarding the ownership of the seized gold. The judgment noted that the confiscation order was not legally correct since the claimants' ownership was established. According to the proviso to Section 71 of the Act, the ornaments should not have been ordered for confiscation. The court found that the adjudicating authority had verified and accepted the claimants' ownership, thus supporting the appellants' argument against the confiscation.5. Quantum of penalty imposed on the appellants Selvarajan and Ramanujam:The appellants argued for a reduction in the penalty, citing their long-standing business record and immediate cooperation during the seizure. The judgment acknowledged that the breach was venial and technical, warranting sympathetic consideration. Consequently, the penalty imposed on Selvarajan and Ramanujam was reduced from Rs. 10,000/- to Rs. 2,500/- each, considering the mitigating circumstances.Conclusion:The appeals resulted in the following outcomes:- The penalty on the firm M/s. Swaminathan & Sons was set aside.- The contravention of Section 55 read with Rule 12 was upheld against Selvarajan and Ramanujam.- The confiscation order was deemed incorrect, and the ownership claims of the various appellants were accepted.- The penalty on Selvarajan and Ramanujam was reduced to Rs. 2,500/- each.- Appeals related to the ownership claims were dismissed as misconceived, as the claims had already been accepted by the adjudicating authority.This comprehensive analysis covers all the issues involved in the judgment, preserving the legal terminology and significant phrases from the original text.