TaxTMI 
TaxTMI 
1989 (9) TMI 230
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....es Purity Weight in gms. Value (1) (2) (3) (4) (5) 1. Churi 46 22 ct. 344.000 2. Har 09 22 ct 195.000 3. Bunda 13 22 ct. 058.000 4. Anguthi 47 22 ct. 138.000 5. Bali 30 22 ct. 48.000 Rs. 26,800.00 6. Tops 16 22 ct. 28.000 7. Pendals 03 22 ct. 09.500 8. Jhumka 06 22 ct. 20.000 9. Tika 09 22 ct. 37.000 10. Kara 01 22 ct. 76.000 Total Weight : 953.500 In respect of the aforesaid gold ornaments, Shri Ashok Kumar Rastogi stated that as there was no cash vouchers or any other documents with him, and the aforesaid gold ornaments were seized by the Gold Control Officer in presence of two independent witnesses: 2. A show cause notice dated 6-4-1985 was issued to Shri Rastogi calling upon him to show cause to the Additional Collector as to why for violation of the provisions of Sections 27(7) (b) and 55 of the Gold (Control) Act, 1968, the seized gold ornaments may not be confiscated under Section 71 and penalty....
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....edeem it on payment of fine of Rs. one lakh and further imposed a penalty of Rs. thirty thousand on the appellant. It is against that order the present appeal is filed. 6. The Ld. Advocate, for the appellant, Shri A.K. Rastogi contended that possession of gold or gold ornaments does not prove that appellant is doing business in gold. Secondly, he contended that he is not a dealer in gold and it is his father who is a dealer in gold with licence Number 1/69 and that he is not a partner in the firm. He further contended that since he is not a dealer in gold the question of his contravening Section 27(7) (b) does not arise. He further contended that the appellant could not be said to have contravened Section 27(1) of the Gold Control Act as there was no such allegation against him in the show cause notice and alternatively he contended that the act does not require obtaining a licence for effecting a single transaction of sale or purchase of gold whatsoever the magnitude of the transaction. He further contended that the first statement given by the appellant before the Customs Officer was retracted by him and that sole statement cannot form the basis to confiscate gold in the absen....
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....unable to accept the contention of the Ld. D.R., Shri P.C. Jain that it is established that the appellant is a dealer in gold and has contravened Section 27(7) (b) and Section 55 of the Gold Control Act. The reason is that the appellant had stated in his reply to Show Cause Notice that it is his father who has got the licence bearing No. 1/69 and he is not a partner in his father's firm along with his reply he had furnished an affidavit sworn by his father, Sri Ramnath Rastogi testifying the above fact of licence standing in his name and also by stating that gold ornaments seized in this case do not belong to him. He has also furnished the affidavits of his wife; and three other relations who had sworn that the gold ornaments belong to them and they have given it to appellant to mortgage them for obtaining funds to raise a new business. In fact, the Ld. Collector himself has accepted this case of the appellant in para 14 of his order which reads as follows : "Para-14: It is established that Sri A.K. Rastogi is not a licensed gold dealer. . However, the facts and circumstantial evidences of the case convince me that Sri Rastogi had induldged in illicit sale transactions of gol....
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....er in para-14 he came to a contrary finding. In fact, there is no evidence to show that appellant is a licensed dealer dealing in gold. On the contrary, the affidavit filed by his father establishes that the licence 1/69 stands in his name and not in appellant's name. In such circumstances, the initial statement given by appellant that he is a licensed dealer with licence No. 1/69 which is retracted later cannot form the basis to come to this conclusion and hence we hold as per Point No. l that it is not established that appellant is a gold dealer and that he has contravened Section 27(7)(b) and Section 55 of Gold Control Act. Point No. (ii) : As far as the second point is concerned in the first instance we observe that there is no allegation in the whole of the show cause notice alleging that appellant is dealing in gold ornaments without a valid licence and requiring him to show cause against the violation of Section 27(1) of Gold Control Act. The relevant portion of show cause notice reads as follows: "Where as it appears that Sri Ashok Kumar Rastogi, S/o Sri Ram Nath Rastogi was found in rickshaw on 11-10-1984 near Thana Chowk Chhapra carrying Gold and Gold ornaments weig....
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....a single transaction of sale or purchase of gold whatsoever be the magnitude of the single transaction. In the instant case, even if the entire material relied upon by the department is accepted. It only establishes that the appellant had come to sell certain ornaments. He had not sold any ornament. This evidence would not be sufficient to hold that the appellant had carried on business as a dealer in gold. Therefore, the charge under Section 27(1) necessarily fails. 14: On the admission of the appellant and from the material collected the department could have charged the appellant for contravention of Section 55 of the Act, But then no such allegation was made in the show cause notice. 15 : The admission of the appellant, his presence in the gold dealers premises are taken as sufficient to infer that the appellant had come to that premises to dispose of the gold ornaments, even then, the charge under Section 27(1) cannot be brought home against him because his act does not amount to carrying on business as a dealer in gold. It only amounts to a single act of sale. The expression 'business' contemplates series of transactions and not a single or stray transaction. I, therefo....