Customs, Excise and Gold Tribunal - Tamil Nadu
P.M. Tette And Ors. vs Collector Of Central Excise on 10 July, 1987
Equivalent citations: 1987(13)ECR320(TRI.-CHENNAI), 1987(31)ELT959(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. The Reference Applications are directed against the order of the Tribunal dated 1-9-1986 in Order No. 698/1986. The applicants have set out the following questions as questions of law in their Reference Applications :
(1) Whether on the facts and circumstances of the case, the Appellate Tribunal was right in rejecting the claim of the Applicant that gold under seizure belongs to 14 persons who gave Gold ornaments for manufacture of new ornaments and when proper entries were made in G.S. 13 register?
(2) Whether on the facts and circumstances of the case the Appellate Tribunal was justified in upholding the order of confiscation for alleged contravention of provisions of Section 8(1) of the Gold (Control) Act when the petitioner is admittedly a goldsmith and he can possess primary gold?
(3) Whether on the facts and circumstances of the case, the Appellate Tribunal was justified in upholding the confiscation of entire primary gold when the petitioner as goldsmith is entitled to possess 300 gms. of primary gold under Section 42 of the Gold (Control) Act.
(4) Whether on the facts and circumstances of the case the Appellate Tribunal was justified in discriminating the Appellant in fixing very high redemption fine without giving any special reason when in similar circumstances much lower fine was fixed by the Tribunal?
(5) Whether on the facts and circumstances of the case the Appellate Tribunal was justified in sustaining personal penalty of Rs. 50,000/- without giving any reason?
(6) Whether on the facts and circumstances of the case the Appellate Tribunal was justified in relying upon the retracted uncorroborative statement of the Appellant for the purpose of confiscating the gold and levy of penalty?
2. Shri Suganchand Jain, the learned Counsel for the applicants, made general submissions on all the questions set out in the Reference Applications and in particular dilated on Question No. 3 contending that a question of law would arise out of the impugned order of the Tribunal meriting reference. It was urged that the finding of the Tribunal rejecting the claims of various claimants is not correct and a question of law would arise in this regard. Regarding Question No. 2 & 3 set out above, the learned Counsel contended that in terms of Section 42 of the Gold (Control) Act, 1968, the 'Act' for short, a certified goldsmith can possess at any time either 100 grams of Standard Gold bars or 300 grams of primary gold including Standard Gold bars. It was urged that the Applicant, Shri Tette, being a certified Goldsmith, would be entitled to possess 300 grams of primary gold and therefore, the confiscation of the same under the impugned order is bad in law and a question of law would arise in regard to the same. The learned Counsel submitted in regard to Question No. 4 & 5 referred to above that the Tribunal has not properly exercised the discretion and the quantum of fine and penalty imposed is harsh and excessive and a question of law could be spelt out in this regard. The learned Counsel further submitted that the reliance placed by the Tribunal under the impugned order on the retracted uncorroborative statement of the appellant is not legal and a question of law would arise in this respect also.
3. We have carefully considered the submissions made before us. With regard to Question No. 1, the Tribunal has taken into consideration various circumstances and relevant pieces of evidence into account to hold that the claim of the various claimants is not acceptable. Para 5 of the impugned order has dealt with in extenso the attendant circumstances and the reasoning of the Tribunal for the finding it has reached on facts regarding the claim of the various claimants, is purely a finding of fact in assessment of evidences available on record and in our opinion no question of law would arise in regard to the same. Question No. 2 & 3 set out in the Reference Application relate to a common question with reference to the legal entitlement of a certified goldsmith to be in possession of primary gold upto 300 gms. Though Section 42 permits a certified goldsmith to be in possession of either 100 grams of Standard gold bars or any quantity of primary gold not exceeding 300 grams (including Standard gold bars) such right or privilege conferred on a certified goldsmith is conditioned by various other circumstances envisaged by Section 40 & 41 of the Act. In terms of Section 41, a goldsmith may buy Standard gold bars from a licensed dealer or refiner, accept otherwise receive any article, ornament or primary "gold from a licensed dealer for the purpose of making, manufacturing, preparing or repairing ornaments for such licensed gold dealer, accept or otherwise receive subject to the provisions of Section 8 from any other person article or ornament for making, manufacturing or preparing ornament for such person and shall not, save as otherwise provided in the Act, buy or agree to buy or sell or agree to sell primary gold or ornament. Section 40 also stipulates that a certified goldsmith may, in the process of making, manufacturing, preparing or repairing ornaments, make, manufacture or prepare primary gold provided the same is authorised by the Administrator so to do. Section 8 of the Act clearly states that no person shall own or have in his possession custody or control or acquire or accept or receive any primary gold except as otherwise provided for in the Act. A conjoint reading of the aforesaid Sections clearly stipulates the circumstances under which alone a certified goldsmith can be found in possession of primary gold upto 300 grams. In the present case, the plea of the certified goldsmith that the huge quantity of primary gold admittedly seized from his possession was the resultant of melting gold ornaments of various persons has been considered and rejected in appreciation of evidence on record. We, therefore, find that this finding of the Tribunal is a clear finding of fact in regard to the contravention of the charge under Section 8(1) of the Act and such a finding of fact would not make for a question of law meriting reference. Question No. 4 & 5 deal with the exercise of judicial discretion by a quasi-judicial Tribunal. The exercise of the discretion by the Tribunal can be called in question only if it is proved and established to be either patently perverse or demonstrably arbitrary and the very fact that the quantum of fine or penalty can be a little more or less would not ipso facto render the very exercise of discretion arbitrary much less give rise to a question of law meriting reference.
4. The last plea of the learned Counsel with reference to the reliance placed on retracted statement is also without force. The Tribunal in para 5 of the impugned order has not only given reasons for accepting the inculpatory statement which admittedly was not retracted immediately but also set out other circumstances which would be corroborative in nature in regard to the inculpatory statement which the Tribunal has found to be voluntary and true meriting acceptance. We do not find any question of law arising in this regard.
5. Therefore, on consideration of the entire materials before us, we do not find any question of law arising out of the impugned order of the Tribunal meriting reference. The Reference Applications are, therefore, rejected.