TaxTMI 
TaxTMI 
1990 (4) TMI 171
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....r of Central Excise, New Delhi in respect of that quantity of ornaments and gave the option to the applicants to redeem the same on payment of a redemption fine of Rs. 15,000/- in lieu of confiscation. The Tribunal also confirmed the penalty imposed under the Gold (Control) Act on the applicants. The present application for rectification of error has been made with reference to this portion of the order of the Tribunal. The prayer in the rectification application is that the Tribunal should rectify the mistake apparent on the face of the record by ordering the release of ornaments weighing 254 gms and 438.300 gms which were received from gold dealers of Bangalore and Amritsar respectively both being covered under the consignor's sale/issue vouchers in the light of the judgment of the Allahabad High Court in the case of CCE, Allahabad v. Lala Kashi Nath Jewellers, Para 18 thereof reported in AIR 1972 All. 231 at page 236 to 237. It is also prayed that the Tribunal should adjudge afresh redemption fine in lieu of confiscation of ornaments weighing 13 gms and Suhan weighing 20 gms. The further prayer is that the Tribunal should grant proper consequential relief of refund of Rs. 1000/-....
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....judicating Authority after examining the said defence of the appellants held that a perusal of the statement given by Shri Karam Chand, Accountant of the appellants firm M/s. Popular Jewellers in cross-examination shows that the Accountant was maintaining only cash books and cash ledgers for the party and not gold control records and this very fact was corroborated by Shri Narinder Mohan Jain appellant in his statement dated 8-11-1978 in which he stated that the statutory gold records in forms G.S. 11 and G.S. 12 and the entries in the Sale and Purchase Books were always maintained by him or his brother Rajinder Kumar. Further the Adjudicating Authority has also found that the appellants had not issued purchase voucher/receipt voucher in respect of the said three consignments, an obligation enjoined upon them under the Act. The Adjudicating Authority has also concluded that the fact that the gold jewellery received from one customer of Churu, that is to say Shri Bachhawat, was put to process without entering the same in the gold control registers or in the receipt/purchase vouchers further reinforces the conclusion that the deal was not genuine. He further lends assurance to this c....
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....ng a power to review. Thereafter, the learned counsel proceeded to urge that in the instant case also the learned Collector of Central Excise, New Delhi as well as the Tribunal inadvertently passed orders with regard to the gold ornaments received from licensed gold dealers of Bangalore as well as Amritsar under valid vouchers issued by the consignors, omitting to consider the applicability of Para 18 of the Allahabad High Court judgment in the case of Collector of Central Excise, Allahabad v. L. Kashinath Jewellers - AIR 1972 All. 231, although specific reference was made to the said Para 18 before the learned Collector of Central Excise in adjudication proceedings, as well as before this Tribunal in the grounds of appeal. The learned counsel pointed out that in spite of the fact that both these transactions were established to be genuine as per the investigation reports received from the Customs Authorities of Bangalore and Amritsar in response to the enquiries made through them by the Asstt. Collector, New Delhi, the learned Collector of Central Excise, New Delhi confiscated both these consignments. The Collector ordered confiscation of ornaments weighing 254 gms received from B....
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....he explanation that the gold ornaments could not be immediately entered in statutory records because the only partner present in the shop was busy who would have made receipt entries in his accounts before closing the shop. The gold ornaments were also received in the shop on 7-11-1978 in the afternoon and in the evening officers had visited the premises for search and seizure. The learned counsel further relied upon the case of Asstt. Collector of Central Excise v. C.D. George, 1988 (16) ECR 340 (Kerala) wherein the Kerala High Court held that gold received the same day and to be entered into accounts of the day cannot be proceeded against. In the circumstances, it was earnestly pleaded by the learned counsel that the rectification of the apparent error as prayed for should be ordered. 4. Smt. Dolly Saxena, learned SDR furnished the enquiry report regarding the two vouchers which were required for perusal by the Bench and submitted that the vouchers on enquiry at the source with the Central Excise authorities at Bangalore and Amritsar had been found to be genuine. Further she contended that the present application, in Department's view, is in effect for reopening of the case an....
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.... at the stage of adjudication there was no finding by the Collector that the vouchers produced were not genuine. We have subsequently also seen the verification report from the Central Excise authorities in response to queries from the Delhi Collectorate which shows that the vouchers were genuine and hence transaction relating to two quantities of gold has to be accepted as having been satisfactorily established. In this context, a perusal of the Tribunal's finding at Para 9 of its Order-in-Appeal extracted supra would show that there is no specific observation by the Tribunal on this aspect in terms and in the light of the ratio of the Allahabad High Court judgment relied upon by the appellants. Had this been properly focused before the Tribunal it was possible that such omission would not have occurred, which, in our view, was important, because of the decision to confirm the order of confiscation of the gold ornaments in this case. Further, as has been brought out in the counsel's arguments, in such a case where there is a clear omission on the part of the Tribunal to consider the contentions on certain aspects of the case before it, rectification thereof would not amount to rev....