1. The appeal is directed against the order of the Collector of Central Excise, Calcutta dated 16-1-1979 absolutely confiscating 28.200 grms.
of primary gold valued at Rs. 1071.00; imposing a fine of Rs. 32,000/-in lieu of confiscation of 818.400 grms. of gold ornaments and gold articles valued at Rs. 30,694/-; and imposing a penalty of Rs. 2 lakhs jointly on appellant S/Shri K.K. Datta and A.N. Datta under the provisions of Gold Control Act, 1968 (the Act for short).
2. The appellant K.K. Datta, subsequent to the filing of appeal died and legal representatives have been brought on record.
3. Shri K.K. Datta and Shri A.N. Datta were pawn broking licence holders having business in 207-F, Rabindra Sarani, Calcutta-7. On 12-8-1976, on the basis of prior information that the appellants were transacting business in gold without licence, the Central Excise authorities searched the pawn broking premises of the appellants and found them in possession of 28.200 grams of primary gold, 818.400 grams of gold ornaments and articles. Besides, the authorities also found certain private documents evidencing transaction in gold to an extent of 1051.019 grams valued at Rs. 50,250/-. Since the appellants were not able to give any satisfactory explanation for the possession of primary gold, the gold ornaments and for the entries in the private documents, the authorities effected seizure of the same under a Mahazar, as per law. Appellant Shri A.N. Datta, brother of the other appellant gave an inculpatory statement before the authorities admitting the fact that he and his brother K.K. Datta were dealing in gold without a licence and the ornaments under seizure were manufactured through local goldsmiths as per different customers' orders. It is in this circumstances, after further investigations, proceedings were instituted against the appellants resulting in the impugned order.
4. Shri Pal, the learned counsel for the appellants submitted that the appellants were not conversant with English language and the statements recorded are not admissible in law since the authorities had not recorded it in the language of the appellants. It was further urged that though the statement of A.N. Datta was not retracted the same would not have any value in law having regard to the reply given by the appellants in the show cause notice repudiating the charges of the department. It was further submitted that D.N. Datta, the son of K.K.Datta was having a goldsmith's licence and, therefore, the ornaments had been manufactured on the basis of the orders of the various customers and this aspect of the matter has not been properly appreciated by the adjudicating authority. The learned counsel further submitted that the adjudicating authority did not examine the customers and verify the truth of the plea of the appellants. The learned counsel also assailed the correctness of the findings of the adjudicating authority in the impugned order that the appellants confessed to the charge of contravention during the personal hearing. The learned counsel further submitted that though the appellants had stated that the purity of the ornaments was 22 carat the authority should have independently assayed the same and this not having been done the appellants are entitled to be exonerated of the charges. The learned counsel also assailed the findings of the adjudicating authority that the gold ornaments which were not available for seizure were also ornaments purchased for purpose of sale, merely because in the Register the value of the gold alone had been indicated.
6. We have carefully considered the submissions made before us. The fact that seizure of the primary gold, gold ornaments and certain accounts, is not disputed before us. The charges were framed against the appellant for contravention under Sections 8 and 27 of the Act. The appellants were admittedly pawn-brokers. Immediately after the seizure of the ornaments, appellant A.N. Datta has given an inculpatory statement admitting the fact that he and his brother were dealing in gold, and the ornaments under seizure were manufactured by a local goldsmith as per orders of the different customers. This statement was not retracted or resiled from at any time. The plea of the learned counsel that the statement has not been recorded in the language of the appellants and, therefore, will not be admissible in law, is not legally tenable. We are informed by the learned D.R. that the statements of the appellants were recorded in Bengali at the time of seizure. The purity of the ornaments would only be a relevant factor in regard to the quantum of fine imposable and when the appellants themselves have not disputed that the ornaments under seizure were of 22 carat purity and so assaying the purity again is not called for. So, the plea of the learned counsel that the authorities during investigation must have independently assailed the ornaments to find out the purity is without substance. Therefore, on careful consideration of the entire evidence on record, we have no hesitation to hold that the charges against the appellant have been clearly brought home and in this view of the matter, we confirm the order of the adjudicating authority.
7. In so far as 28.200 grams of primary gold is concerned, we confirm the order of absolute confiscation. Regarding the quantum of fine of Rs. 32,000/- in lieu of confiscation if 818.400 grams of gold ornaments and articles, having regard to the fact that the value of the same is only Rs. 30,694/- we reduce the quantum of fine to Rs. 10,000/-. We find that under the impugned order; the adjudicating authority have imposed a penalty of Rs. 2 lakhs jointly and sevarally on the appellants. We should confess, we are at a loss to understand as to how a penalty can be jointly and severally imposed on two persons when proceedings are penal in nature. Having found the contraventions against the appellant we set aside the penalty jointly imposed by the adjudicating authority on Appellants, modify that part of the order and impose a separate penalty of Rs. 15,000/- on each of the appellants.
8. Except for the above modification, the appeal is otherwise dismissed.