Customs, Excise and Gold Tribunal - Delhi
Man Singh Lamba And Sons vs Collector Of Central Excise on 16 August, 1988
Equivalent citations: 1989(23)ECR586(TRI.-DELHI), 1989(39)ELT700(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. Canvassing that the following alleged questions of law arise out of Order No. A/505 to 509/87-NRB dated 31.8.87 passed by this Tribunal in Appeal Nos. GC/DEL/163/83-NRB, G/12/87-NRB, G/13/87-NRB, G/14/87-NRB and G/15/87-NRB-1987 (32) ELT 730 the applicants pray that the same may be referred to the concerned High Court for determination:
(a) Whether in the case of seizure of gold ornaments from jewellers shop when the shopkeeper not merely declares the name of the owner and customer but even goes to the extent of producing the affidavits of the customer and files it, is it open to the authorities to confiscate the gold- ornaments without giving a notice in writing to the customers/owners whose details are declared in the affidavit by the owners; themselves?
(b) Whether such a power of confiscation by relying upon the rebuttable presumption of Section 99 would not render otiose the valuable right granted and guaranteed by Section 79 of the Act? ,
(c) Whether it is open to the Collector of Customs and to the Appellate Tribunal to reject affidavit evidence produced before them by the parties, without summoning the deponents of the affidavits and satisfying themselves as to the veracity of the statements contained in the affidavit.
(d) Whether the Collector and the Central Excise Gold Control Appellate Tribunal were justified law in imposing separate fine on each of the partners and also on the firm? Does it not go contrary to the basic tenets of the partnership Act? In other words does a partnership firm have a separate entity and a legal personality over and above and different from that of all its members. Therefore, when each and everyone of the five partners has been fined Rs. 10,000/-. Whether the separate fine of Rs. 50,000/- on the firm is legally sustainable? Will it not amount double jeopardy?
(e) Whether the Collector of Customs and the Appellate Tribunal were justified in passing an order of confiscation of the gold ornaments, without a notice to the owners of the gold ornaments specially when Section 79 of the Gold Control Act casts a mandate on the authority to give in writing a notice on the owners of the gold before it is confiscated?
(f) Whether this solemn procedural obligation cast on the authorities by Section 79 of the Act could be negatived by resorting to the presumption reached by Section 99 of the Gold Control Act?
(g) Is not the presumption under Section 99 of the Act rebutted by the 15 affidavits of the owners of the Gold Ornaments filed before the authorities. When the authorities were made aware of the addresses of owners by the affidavit of owners themselves, then is not the legal obligation to send a notice to them under Section 79 absolute and unavoidable? Since this question of law is likely to arise frequently in adjudication before Tribunal, an authoritative and harmonious interpretation of Sections 79 and 99 by the High Court is called for, not only for rendering justice in the present case but for the guidance for the Tribunal on this vexed question of law that arises frequently.
(h) Whether the Collector and the Appellate Tribunal were justified in not accepting the affidavit evidence tendered by the petitioner herein on a technical view that for acceptance of the affidavit evidence the prior permission of the Court should have been taken. Would not the affidavits become acceptable documents under Section 79 of the Act as coveats by the owners and as anticipatory protest documents against any proposed confiscation? (In this connection it is submitted that if the Tribunal or the Collector had any doubts about the veracity of the documents (affidavit) then they had full power to summon the deponents and examine them. Without doing it, can the affidavits which are serious and solemn affirmations be ignored? The reliance placed on AIR 1963 SC PAGE 1) is totally misconceived because that was a case in which affidavits produced in an earlier litigation were sought to be brought on record in a later litigation and it is in that context that the court refused to rely on them. That case is no authority for the proposition that in proceedings, before Tribunal affidavit evidence cannot be relied upon. Indeed there are several later decisions of the Supreme Court which are to the contrary and they are AIR 1981 SC 1113; Gegraj v. State of U.P. (1973) 27 FAC LR 248 SC and AIR 1972 SC 330.
(i) Whether on the facts and circumstances of the case the Collector of Customs and Central Excise as well as the Central Excise (Gold) Appellate Tribunal was justified in over looking the statement of Shri Man Singh Lamba, senior partner of the firm which was recorded on 29.5.1982 on the sopt wherein he had deposed that the excess gold ornament had been received from a number of Customers and relatives for repairs and polish from the authorised goldsmiths and when he had spelt out the names of as many as 10 of them.
(j) Whether on the facts and circumstances of the case that Collector of Customs and Central Excise and the Appellate Tribunal were justified in ignoring the affidavits of as many as 15 customers, who had confirmed the ownership of the gold ornaments seized by the Gold Control Authorities on 293.1982, which they had given for repairs and polish to the firm.
(k) Whether the Collector of Customs and Central Excise and the Appellate Tribunal were justified in over looking the statement of Sh. Man Singh Lamba the senior partner and the affidavit of the 15 customers in total disregard of a number of High Courts and Supreme Court judgments according to which the affidavits constituted a good piece of evidence and could not be ignored unless the same were controverted by the concerned authorities namely: (i) Mehta Parekh and Co. v. Commissioner of Income Tax Bombay (1956) 30 ITR SC 181 - AIR 1956 SC 557, (ii) Madras High Court judgment in the case of KA. Subramanium v. Controller of Estate Duty (1962) 46 I.T.R. (Estate Duty Cases) 1, (iii) Bombay High Court judgment in the case of Dalip Kumar Roy v. Commissioner of Income Tax, Pune (1974) 94 I.T.R. 1, (iv) Gauhati High Court judgment in the case of Hanutram Ram Prasam v. Commissioner of Income Tax, Assam (1978) 114, I.T.R. 19, (v) Allahabad High Court judgment in the case of L. Sohan Lal Gupta v. Commissioner of Income Tax, U.P. Lucknow (1958) 33 I.T.R. 786.
(1) Whether on the facts and circumstances of the case the Collector of Customs and Central Excise and the Appellate Tribunal were justified in imposing penalties on the firm as well as on each of its five partners when the firm is COMPENDIUM of the partners and does not have a separate legal existence in law.
(m) Whether on the facts and circumstances of the case the CC and CE and the Appellate Tribunal were justified in imposing penalties on the firm as well as on the partners in total disregard of the judgments of the Supreme Court and the High Courts according to which a firm is a collective name of the partners and according to some of which no separate penalties are to be imposed against the partners namely : (i) Commissioner of Income Tax Madras v. R.M. Chidambram Pillai etc. (1977) 106 ITR SC 292 - AIR 1977 SC 489 (ii) Commissioner of Income Tax Bihar v. Ram NikLalKothari (1969) 74 ITR SC 57 (iii) Punjab and Haryana High Court judgment in the case of C.I.T.-n\.PratapChand Maheshwari (1980) 124 ITR 653 (iv) Punjab and Haryana High Court judgment in the case of Pearl Woolen Mills Ltd. v. C.I.T. Patiala (1980) 123 ITR 658 (v) Allahabad High Court judgment in the case of Additional Commissioner of Income Tax Lucknow v. Shrimati Triveni Devi (1974) 97 ITR 390.
(n) Whether on the facts and circumstances of the case the CC & CE & Appellate Tribunal were justified in ignoring the entries in the prescribed Register G.S. 13 of two authorised Gold Smiths about the repair and polish of the gold ornaments of Appellant's 15 customers, which were alleged to be excess.
(o) Whether on the facts and circumstances of the case the Collector of Customs and Central Excises and the Appellate Tribunal were justified in ignoring the entries in the Prescribed Register G.S. 13 of two authorised gold smiths about the repair and polish of the gold ornaments of appellants 15 customers which were alleged to be in excess.
2. Brief facts leading to the present applications and as found by this Tribunal in paragraph 2 of its said order are as follows :
"2. Factual backdrop : M/s. Man Singh Lamba & Sons - appellants herein -are licensed Gold Dealers having their shops at Karol Bagh, New Delhi. Other appellants are the partners of the said firm. It is alleged that on 29.5.1982 as a result of the search of the business premises of the said firm a quantity of 1502.000 grams (73 pieces) of new gold ornaments of 22 ct. purity valued at Rs. 2,46,328/- was found in excess. At the time of the search and seizure Shri Man Singh Lamba and Devinder Singh Lamba, partners of the said firm were present. Another partner, Shri Jaspal Singh was also present, but he left the place during the course of checking. Since Man Singh Lamba, partner, could not satisfactorily explained about the excess quantity of gold ornaments, the same were seized under Section 66 of the Gold (Control) Act, 1968. It is also alleged that the issue Vouchers No. 42 to 48 issued from 16.5.1982 to 23.5.1982 were not entered in the relevant account books. It deserves to be mentioned here that the said excess ornaments were found after taking into account the quantity covered by the said unentered issue vouchers. After usual investigation separate Show Cause Notices were issued to the appellants to show cause as to why the seized excess ornaments be not confiscated and penalty be not imposed for con-tarvening the provisions of the Gold (Control) Act. In reply, the appellants, inter alia, contended that the excess ornaments belong to the different customers and were received by the appellants for the purpose of polishing/repairs as middlemen. After usual adjudication proceedings, the Collector, Central Excise, concluded that the charges levelled against the appellants in their Show Cause Notices were proved beyond any doubt as the seized excess quantity of ornaments were acquired by the appellants unauthorisely, and that they failed to make the entries in the statutory records as required under Section 55 of the Gold (Control) Act and the Rules made thereunder, and thus contravened the provisions of Sections 8 and 55 of the Gold (Control) Act. Consequently, the Adjudicating Authority ordered for the confiscation of the seized excess gold ornaments with an option to redeem the same as stated above and also imposed a penalty of Rs. 50,000/- on the appellants M/s. Man Singh Lamba & Sons and Rs. 10,000/- on each of the partners S/Shri Man Singh Lamba, Devinder Singh, Inderjeet Singh, Jaspal Singh and Amerjeet Singh under Section 74 of the Gold (Control) Act."
3. Being aggrieved with the said order of the adjudicating authority all the applicants filed their appeals before this Tribunal. The same were dismissed by the said order of the Tribunal. We have heard Shri Man Ahmed, Learned counsel for the applicants and Smt. Nisha Chaturvedi, learned SDR for the respondent.
4. At the time of hearing learned counsel for the applicants submitted that question Nos. (a), (b), (e), (f) and (g) overlap each other and these may be grouped together and treated as a single question. Likewise he also submitted that question Nos. (1), (m) and (d) also overlap each other and be treated as a single question. He further submitted that question Nos. (c), (h), (i), (j) and (k) also overlap each other and be treated as a single question. He also submitted that he is not pressing for question Nos. (n) and (o) as they are neither arising out of the order nor are questions of law.
5. As regards Question Nos. (a), (b), (e), (I) and (g): At the time of hearing Shri Irfan Ahmed, learned counsel for the applicants while admitting that all these questions overlap each other submitted that the contraband gold ornaments which were found in excess at the time of raid belonged to the different 15 customers and therefore show cause notices should have been issued to the said 15 customers before confiscating the same in terms of Section 79 of the Gold (Control) Act, 1968. He further submitted that the presumption laid down in Section 99 of the Gold (Control) Act, 1968 as to the ownership of the gold could not render otiose the right granted and guaranteed by Section 79, ibid to the owner of ihe gold. In reply Smt. Nisha Chaturvedi, learned SDR submitted that the same argument was advanced at the time of hearing of the appeal which was negatived by the Tribunal. Besides she also submitted that during the entire adjudication proceedings at no stage any alleged customer came forward to claim the contraband gold ornaments by alleging their claim before the adjudication authority for return of the ornaments in question. She further submitted that the defence of the applicants that the contraband gold ornaments were given for repairs was found to be false on the basis of the evidence on record. She highlighted that in his statement recorded on the spot Shri Man Singh Lamba even failed to disclose the names and addresses of the alleged customers. Under these circumstances she submitted that when it was not established to the satisfaction of the officer adjudging the confiscation that the contraband gold ornaments belonged to the alleged customers the question of issuing any notice in terms of Section 79 to the said alleged customers did not arise. In a nutshell she submitted that it is a question of appreciation of facts since the adjudicating authority as well as the Tribunal held on facts and circumstances of the instant case that the contraband gold ornaments belonged to the applicants. As regards the effect of presumption as to ownership as laid down in Section 99 of the Act on Section 79 she submitted that this question was never argued.
6. We have considered the arguments and find that the question of issuing show cause notice to the alleged customers was raised during the hearing and the same was disposed of by the Tribunal in the following terms:
"7. The other contention of the learned counsel for the appellants that Show Cause Notice under Section 71 read with Section 79 should have been issued to the alleged 15 customers has also no force. As per Section 71 of the Gold (Control) Act, whenever any gold is found in possession of a person or a dealer in respect of which any provision of the Act or Rules framed thereunder had been contravened, the same becomes liable to confiscation unless as per proviso to the Section where it is established to the satisfaction of the Adjudicating Officer that the real owner of the gold was someone other than the one who was guilty of the contravention. The tenor of the wording of the proviso would clearly show that the burden of satisfying the Adjudicating Officer about the ownership of some other person is on the one from whose possession the gold has been seized or who was found to have contravened the provisions of the Gold (Control) Act or relevant Rules. This would be further clear from the initial presumption of ownership which is placed by Section 99 of the Gold (Control) Act on the person who has gold in possession, custody or control including gold ornaments. In the instant case, as is evident from the impugned order the appellants had failed to establish to the satisfaction of the Collector who adjudicated the case that the seized excess gold ornaments belong to the alleged customers. Thus, under these circumstances the question of issuing any Notice to the alleged customers did not arise."
7. From the above findings it is clear that these questions relate to the appreciation of evidence on record and after appreciating the evidence on record it was held that in the facts and circumstances of the case the question of issuing any show cause notice to the alleged customers did not arise.
8. It is made clear that as to whether the presumption as to ownership laid down in Section99 of the Gold (Control) Act would render otiose the provisions of Section 79 of the Act was never argued at the time of hearing of the appeal by the Tribunal. Hence this question does not arise out of the order passed by this Tribunal. As such none of these questions merit any reference.
9. As regards Question Nos. (d), (1) and (m) : While admitting that these questions overlap each other Shri Irfan Ahmad, learned counsel for the applicant submitted that penalties on the firm as well as on the partners cannot be legally imposed and to support his contention he cited the case law as mentioned in Question No. (m) above. In reply Smt. Nisha Chaturvedi, learned SDR submitted that this question does not arise out of the order passed by this Tribunal as it was never argued at the time of hearing of the appeal. That apart she submitted that this question is no longer res integra since the penalty can be imposed upon a partnership firm appears to have been concluded by a recent judgment of the Hon'ble Supreme Court rendered in the case of Rai Bahadur v. Director of Enforcement, 1987 (12) ECR 423. She submitted that in that case a penalty of certain amount was imposed upon the partnership firm for contravening the provisions of Section 12(2) of the Foreign Exchange Regulation Act, 1947 and it was contended that penalty cannot be imposed upon the firm as the word "whoever" occurring in Section 23(1), prior to its amendment, of the Foreign Exchange Regulation Act, 1947 only includes a natural person and does not include association of persons such as a partnership firm. Repelling the contention their Lordships held that the word "whoever" means not only a natural person but also an association of persons such as a partnership firm. She further submitted that recently a Division Bench of the Delhi High Court in the case of Talwar Diamonds v. Union of India, 1987 (28) ELT 331 had an occasion to deal with the specific question as to whether a firm under the Gold (Control) Act, 1968 has a juristic personality and is a "person" capable of holding a licence. In that case it was contended by the Government that a firm does not have a juristic personality and that when a licence is granted in the name of a firm, it is really a licence granted to all the partners of the firm jointly. Repelling the contention their Lordships held as follows :
"6. We are unable to accept the contention urged on behalf of the department. A perusal of the Gold (Control) Act clearly shows that a licence under the Act is to be granted to a 'dealer'. 'Dealer' is defined in Section 2(h), as including a Hindu Undivided Family, a local authority, company, society registered under the Societies Registration Act, a co-operative society, a club, firm or other association of persons. It is, therefore, clear that, whether a firm can be treated as a legal person or not in general law, for the purposes of the Gold (Control) Act a firm is a legal entity. In fact it is common ground that licences are applied for by the firms and are granted to firms. Indeed in the case of Talwar Jewellers licence has been granted in the name of the firm itself. If the present objection had not been raised, the petitioner firm would have also been granted a licence. The Act clearly envisages a licence in the name of a firm. This is also clear from the provisions of Section 52 of the Act. This section provides that, when there is a change in the constitution of a partnership, the licence granted to a firm as a dealer will become invalid unless the change has been approved by the Administrator. This section makes it clear that the licence is granted in the name of the firm itself but that the change of the constitution of a partnership should be approved by the Administrator if the licence in the name of the firm is to continue. Even the terms of Rule 2(dd) on which reliance is placed by the respondents clearly show that the stand taken by the department is untenable. The last part of the rule which we have extracted earlier postulates a firm holding a licence. It is, therefore, clear in the context of the Gold (Control) Act, that in the case of firm, the "person" who holds a licence is the firm itself. As under the Income-tax Act, so under this Act a firm is also a "person" capable of holding a licence. The terms of Rule 2(dd) do not, therefore, apply where the applicant firm is not the holder of another gold dealer's licence, or perhaps a case where all the partners of the applicant firm are partners in another firm holding a valid licence. Our conclusion is also fortified by the form prescribed for application for a licence under the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968 where one of the columns requires an applicant to name the partners of the firm."
10. We have considered the arguments. To a specific question put by the Bench to Shri Irfan Ahmad, Advocate that these questions do not arise out of the order passed by this Tribunal since these were neither raised before the Tribunal nor considered by it the learned counsel frankly admitted that these questions were not raised before this Tribunal nor considered by it and therefore in one sense it can be said that these questions do not arise out of the order. But he hastened to add that these questions do arise out of the findings given by the Tribunal. We are afraid this contention of the learned counsel cannot be accepted in view of the law laid down by the Hon'ble Supreme Court in I.T. Commr. v. S.S. Navigation Co. Ltd., AIR 1961 SC 1633 wherein their Lordships have held that when a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it. (Emphasis supplied). This position of law was again restated by their Lordships in the case of Keshav Mills Co. Ltd., Petlad v. Commissioner of Income Tax, AIR 1965 SC 1636. A Full Bench of the Kerala High Court also took the same view in the case of Gift Tax Commissioner v. M. Valiathan, AIR 1968 Kerala 80. Thus these questions do not merit any reference as they do not arise out of the order passed by this Tribunal.
11. As regards Question Nos. (c), (h), (i), (j) and (k) : Shri Irfan Ahmad, learned counsel for the applicant submitted that these questions overlap each other and be taken together. While arguing on all these questions Shri Irfan Ahmad submitted that it was not open to the Collector of Customs and also to this Tribunal to reject the affidavits filed during the adjudication proceedings without summoning the deponents of the affidavits and satisfying themselves as to the veracity of the statements contained in the affidavits. In support of this contention he heavily relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Mehta Parekh & Co. v. Income Tax Commissioner, AIR 1956 SC 554 and also cited the few other judgments of the different High Courts. In reply Smt. Nisha Chaturvedi, learned SDR submitted that there is no general law that affidavits should not be rejected without testing the veracity of the deponents by cross-examination or by some other means. We have considered the arguments. It cannot be laid down as a general preposition that irrespective of circumstances affidavits should as a rule be relied upon as representing the truth. Much depends upon the facts and circumstances of each case. In the case of Mehta Parekh & Co. v. Income Tax Commissioner, supra it was held that normally speaking if the officer desires to challenge the correctness of affidavits he should call the deponents for being cross-examined and test the averment by any other means open to him. The use of the word 'normal' in the said judgment came up for consideration before the Hon'ble Delhi High Court in the case of Indru Ram Chander, Bharvani v. Union of India, (1988) 17 ECC 233 while interpreting the word 'normal' their Lordships held as follows :
"The use of the word 'normal' in the judgment itself shows that there is no hard and fast rule and every case depends upon its own peculiar facts. Eventually each case would turn upon its own facts and circumstances and the conduct of the parties. If the facts are so revealing or improbable as in this case, no useful purpose could be served by cross-examination. The facts are to be analysed in the light of the totality of circumstances and the conduct of the parties."
That is what has actually been done by the Tribunal. During the course of the hearing of the appeals on merits all the affidavits on record were pressed into service but were not found reliable by the Tribunal in the facts and circumstances of the case. For the ready reference the contentions raised by the parties and the findings of the Tribunal may be reproduced with advantage which runs thus -
"5. Shri L.C. Sikka, learned counsel for the appellants vehemently contended that all the excess ornaments belong to their 15 customers as detailed out in para 10 of the impugned order and these excess ornaments were received for repairs, polishing and stone setting. He drew our attention to the affidavits filed by the said 15 customers. In reply Shri S. Krishna Murthy, learned SDR contended that at the time of the search and seizure of excess gold ornaments in question Shri Man Singh Lamba, appellant herein, had admitted that there were no corresponding entries in the Repair Register in respect of the seized excess gold ornaments said to have been given for repairs by their alleged customers. He further pointed out that at the time of the seizure the statement of Shri Man Singh Lamba was also recorded on the spot. In his statement Shri Man Singh Lamba failed to disclose the names and addresses of the alleged customers. He further submitted that a perusal of the affidavits filed by the said alleged customers would reveal that all the 15 customers delivered their ornaments not to the appellants, but directly to two goldsmiths for getting their ornaments repaired. On this premises, learned SDR submitted that the defence plea that the appellant firm simply acted as an agent between the customer and the goldsmiths is not tenable in law. He further submitted that during the adjudication proceedings at no stage any alleged customer came forward to claim the excess gold ornaments by lodging their claims for the return of the ornaments in question. He further drew our attention to the fact that Repair Register of the appellant firm was also resumed at the time of seizure and it would appear from it that there had been only three transactions of repair during the two years period, that is to say, on 15.4.1980, 5.9.1980 and 2.5.1982 involving a quantity of 572.700 grams. This state of affairs, according to him, would prima facie show that the appellant firm hardly handled any repair cases at all or if they did, as contended by the appellants, they never entered them in records. In this background, the learned SDR further submitted that in the absence of any cogent evidence the defence of the appellant that a big quantity of seized gold ornaments claimed to have been received for repairs in two/three days only, that is to say, 25th, 26th and 27th May 1982 is a cooked up story. On the top of it, contended the SDR, the non-accountal of the seized gold ornaments in the Repair Register and non-entry of Issue Voucher Nos. 42 to 48 issued from 16.5.1982 to 23.5.1982 in the statutory records - a fact which was not disputed before us - speaks a volume for the appellants.
6. After giving our due consideration to the arguments so advanced, we find no substance in the contention of the learned counsel for the appellants that the excess gold ornaments were delivered for repairs, polishing etc., by the alleged 15 customers. From the record we observe that in his statement recorded on the spot at the time of seizure Shri Man Singh Lamba failed to disclose the names and addresses of the alleged customers though he has stated that the same were received for repairs from the customers. It deserves to be highlighted here that at the time of seizure according to the statement of Shri Man Singh Lamba the excess ornaments were received for repairs by them, but during the course of the adjudication proceedings the appellants came out with a new defence that the seized excess gold ornaments were directly handed over by the said 15 customers to the two goldsmiths and after doing the necessary repairs the ornaments in question were delivered by the said goldsmiths to the dealer. It is on record that the affidavits of the alleged 15 customers and the photo copies of G.S. 13 Register of the goldsmiths were produced after a lapse of more than one year from the date of the seizure. No explanation is forthcoming on record as to why the very important fact that the gold ornaments were delivered directly to the goldsmiths and the appellant firm acted as a middleman was not mentioned by Shri Man Singh Lamba in his statement recorded on the spot. Likewise, no explanation is forthcoming as to why the affidavits of the alleged customers or at-least the photo copies of G.S. 13 Register of goldsmiths were not filed immediately after the seizure. The inordinate delay of more than a year in filing the affidavits of the alleged customers and the photo copies of G.S. 13 Register of goldsmiths without any explanation is fatal to the defence. From the impugned order we find that on examination of the photo copies of the G.S. 13 Register produced during the adjudication proceedings, the Collector had found that the said photo copies do not indicate the names and addresses of the goldsmiths. Not only that, these copies also do not indicate the fact that the excess gold ornaments in question were returned to the appellants. These circumstances also go against the appellants. The contention of the learned counsel for the appellants that Section 83 of the Gold (Control) Act empowers the Adjudicating Authority to receive evidence on affidavits and therefore the affidavits filed by the alleged customers should have been believed in the absence of any cross-examination by the Department has also no force. It is true that Section 83 of the Gold (Control) Act bestows all the powers of the Civil Court under the Code of Civil Procedure, while trying a suit in respect of certain matters which includes "receiving evidence on affidavits." Order XIX, Rule 1 of the Code of Civil Procedure provides that "any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable." Proviso to this Rule provides that "where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. Interpreting the said rule the Hon'ble Supreme Court has held in the case of Viswanathan v. Wajid, AIR 1963 SC 1, that when the court has not ordered the proof of a fact by an affidavit it is no evidence nor an affidavit can be used as evidence under the Evidence Act. In the case of Munibasappa v. Gumsiddaraja, AIR 19S9 Mys. 90, while dealing with the matrimonial case it was held that affidavit is not an evidence on which a decision could be based unless the parties agree. It would be contrary to practice to act on affidavit as evidence in matrimonial cases. Besides, in our considered opinion it cannot be laid down as a general proposition that irrespective of circumstance/circumstances affidavits should as a rule be relied upon as representing the truth. Much depends upon the facts and circumstances of each case. In the instant case, the Adjudicating Authority after relying on the various circumstances on record had not placed any reliance upon the said affidavits. The alleged customers who are the deponents of the said affidavits have also never came forward at any stage of the adjudication proceedings to claim the gold ornaments by lodging their claim for the return of the ornaments before the Adjudicating Authority. None of the alleged customers was ever produced by the appellants as a witness before the Adjudicating Authority. Thus, if the Adjudicating Authority after taking into account the overall picture of the case and circumstances on record did not think it proper to call any deponent (customer) for cross-examination no fault can be found with him."
12. Thus it is clear that the affidavits on record were rejected by the Tribunal after appreciating the facts and circumstances of the case. Therefore, no question of law meriting any reference arises.
As regards Question Nos. (n) and (o):
13. As stated above both these questions were not pressed at the time of hearing of the application and in our opinion rightly so, as both these questions relate to the appreciation of the evidence on record.
14. In the result all the applications are dismissed as no question of law meriting any reference arises out of the Order passed by this Tribunal on 31.8.1987.