1989 (2) TMI 275 - AT - Central Excise

Firm penalized under Gold Act without license; Tribunal rejects rectification and Collector's appeal.

The Tribunal determined that the firm, M/s. Swaminathan & Sons, was not legally recognized under the Gold (Control) Act, 1968, as it did not hold a ... Rectification of Mistake Issues Involved:1. Whether the firm was in existence at the relevant time when the offence was committed.2. Whether the Tribunal's finding about the non-existence of the firm constitutes an error apparent on the face of the record.3. Whether the imposition of a penalty on the firm was legally tenable.4. Whether the rectification application under Section 81-A(2) of the Gold (Control) Act, 1968 is maintainable.Detailed Analysis:Issue 1: Existence of the Firm at the Relevant TimeThe Tribunal examined whether the firm, M/s. Swaminathan & Sons, was in existence on 20-9-1982, the date when the offence was committed. The learned S.D.R. argued that a partnership deed dated 29-3-82 between Selvarajan and Ramanujam, although not registered, established the firm's existence. However, the Tribunal found that no licence was granted in the firm's name under the Gold (Control) Act, 1968. The licence was issued to two individuals, Selvarajan and Ramanujam, not to the firm. This distinction was crucial because, under the Act, a firm must hold a licence to be recognized as a legal entity capable of committing an offence.Issue 2: Error Apparent on the Face of the RecordThe Tribunal considered whether its previous finding that the firm was not in existence constituted an error apparent on the face of the record. The learned S.D.R. contended that the firm was recognized by the Department and thus should be considered in existence. However, the Tribunal maintained that the absence of a licence in the firm's name meant it was not legally recognized under the Act. The Tribunal cited precedents from the Delhi High Court and the Madras High Court, which clarified that a firm must hold a licence to be considered a legal entity under the Gold (Control) Act.Issue 3: Legality of the Penalty Imposed on the FirmThe Tribunal addressed the legality of the penalty imposed on M/s. Swaminathan & Sons. Since the firm was not recognized as a legal entity under the Act due to the lack of a licence, the imposition of a penalty on the firm was deemed not legally tenable. The Tribunal's previous order, which set aside the penalty on the firm, was upheld as it aligned with the established legal principles and evidence on record.Issue 4: Maintainability of the Rectification ApplicationThe Tribunal evaluated the scope of the rectification application under Section 81-A(2) of the Gold (Control) Act, 1968. The learned Counsel for the Respondent argued that the rectification application is limited to correcting errors apparent on the face of the record and does not permit the introduction of new evidence. The Tribunal agreed, emphasizing that no new documentary evidence proving the firm's existence was presented. The rectification application was dismissed as it did not meet the criteria for correcting an apparent error.Conclusion:The Tribunal concluded that no firm named M/s. Swaminathan & Sons was in existence as a licensee under the Gold (Control) Act, 1968, at the time of the offence. Consequently, the imposition of a penalty on the firm was not legally valid. The rectification application was dismissed, and the Tribunal's original finding was upheld. The Reference Application filed by the Collector of Central Excise was also rejected as it did not present any new question of law.