TaxTMI 
TaxTMI 
1989 (12) TMI 147
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....ndas Bhimji Zaveri. It is alleged that as a result of his personal search new gold ornaments wrapped in white papers were recovered. The same were seized under Section 66 of the Gold (Control) Act, 1968. In his statement recorded on the spot the appellant Shri Manoj Kumar stated that his father Shri Kali Charan, appellant has a shop under the name and style of M/s. Kali Charan Basant Lal at Meerut and the recovered gold ornaments were given by his father with the direction to sell the same to the said firm M/s. Tribhovandas Bhimji Zaveri, and that as soon as he reached outside the shop of the said firm, he was intercepted by the authorities concerned. The statement of the partner of the said firm Shri Kishorebhai Zaveri was also recorded on 25-1-85 in which he stated that they had legal transactions of standard gold/gold ornaments with the said firm of M/s. Kali Charan Basant Lal, appellant. As a follow-up action the business and residential premises of the appellant were searched out by the Central Excise authorities at Meerut. As a result some dollars (which is not the subject matter of the appeal) were recovered from a lady's purse lying in the bed room of one Shri Phool Kumar. ....
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....ry corollary the appellant firm M/s. Kali Charan Basant Lal, Meerut was charged for contravening the provisions of Sections 33, 36 and 55 of Gold (Control) Act, 1968 read with Rules 11 and 13 of Gold Control (Forms, Fees and Misc. Matters) Rules, 1968 alleging that the seized gold ornaments were the excess gold ornaments because the same were not entered in the statutory accounts and therefore, they appear to have been acquired unauthorisedly and were sent to Delhi for clandestine sale thereof. Against these charges, he submitted, that at the time when the business and residential premises of the appellant firm M/s. Kali Charan Basant Lal were searched as a follow-up action on 26-1-85 the statutory records of the appellant firm were inspected and it was found that the seized gold ornaments were duly accounted for therein, and that the seized gold ornaments were also duly covered by a valid voucher. He submitted that the seizure of the said statutory records and the voucher seized also stands corroborated by the panchnama and the recovery memos prepared on the spot. Not only this, he vehemently contended that immediately after the recovery of the seized gold ornaments the appellant ....
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....of the appellants. Besides the documentary evidence supporting the defence, he continued and urged that the circumstances of the case also prove the defence of the appellants. To wit - (i) the fact that the appellant is a licensed dealer is not in dispute; (ii) the fact that the appellant firm had the legal dealings with the said M/s. Tribhovandas Bhimji Zaveri is also not a dispute; (iii) the fact that Sh. Manoj Kumar was intercepted in the shop of said firm M/s. Tribhovandas Bhimji Zaveri is also not in dispute; (iv) the fact that at the relevant time the stock of gold/gold ornaments of the said firm M/s. Tribhovandas Bhimji Zaveri, Gold Dealers was under checking is again not disputed; and (v) the fact that Shri Manoj Kumar was intercepted and the gold ornaments in question were recovered at the time of the said checking of the stock of the said firm M/s. Tribhovandas Bhimji Zaveri is also not disputed. 5. On these premises Shri Harbans Singh, Learned Counsel for the appellants submitted that had the instant case been a case of clandestine sale as alleged by the Department it is beyond common sense that the appellant or any other person who intends to sell the ....
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....id firm M/s. Tribhovandas Bhimji Zaveri. The fact that the said statement was retracted immediately by the appellant Shri Manoj Kumar by a telegram is not even discussed. Likewise, the fact that bus ticket issued for the journey from Meerut to Delhi on 25-1-85 has also not been rebutted in the impugned order. The Adjudicating Authority has also not appreciated the denial of the said firm M/s. Tribhovandas Bhimji Zaveri in the right perspective. The Adjudicating Authority has also not stated anywhere in the impugned order that the gold ornaments in question were not bearing the stamp of 'TBZ' as contended by the appellants. There is no discussion and finding on the fact that the statements were retracted by the appellant Shri Manoj Kumar. It is-a trite law that whenever a confessional statement is retracted, it is the duty of the authority deciding the case, to take into consideration the said retraction while coming to a particular conclusion. For, retraction does effect the voluntary nature and truthfulness of the confessional statement. In the instant case immediately after the seizure of the gold ornaments in question Manoj Kumar in his telegraphic request for the release of the....