1. Shri Santosh Kumar Dey of 31/1, Sadananda Road, Calcutta 26, had filed an appeal to the Gold Control Administrator, Ministry of Finance, Department of Revenue and Insurance, New Delhi being aggrieved from Order No. 73 (Gold) 77/11 of 1978 dated 6 11 1978 passed by the Collector of Central Excise, Calcutta. After coming into existence of the Tribunal, the said appeal stands transferred to the Tribunal under Section 82 (a) of the Gold Control Act, 1968 and is being disposed of as an appeal.
2. Briefly, the facts of the case are that on information the officers of Gold (Control), Calcutta searched the shop premises of M/s.
Mahalaxmi Jewellery, 31/1, Sapananda Road, Calcutta 26 under the occupation of the appellant. The officers recovered gold and gold ornaments weighing altogether 398.900 gms. valued at Rs. 17,823/ along with private books of accounts showing illicit transactions of gold and gold ornaments from the appellant's shop premises and seized the said gold and gold ornaments for the alleged contravention of the provisions of the Gold Control Act, 1968. The private books of accounts revealed the transactions of gold and gold ornaments for Rs. 88,660/ weighing 1364.040 gms. On 20 12 1977 a statement of the appellant was recorded and in the statement he had admitted that a quantity of 29.300 gms of new gold ornaments of 22 carat purity, 51.900 gms of pri mary gold and 317.700 gms. of gold sweepings were recovered from the iron safe of his shop and also admitted that he manufactured gold ornaments and repaired the same without having any certificate or any licence as per orders placed by the customers. The appellant had also stated that he did not have any licence as a goldsmith or a gold dealer. Accordingly, a show cause notice was issued for violation of Sections 27(i) and ll(b) ibid.
In reply to the same, the appellant had stated vide letter dated 5th September 1978 that he had not contravened the provisions of Section 27 (i) ibid and admitted that he had polished, prepared, and re made gold ornaments on be half of his customers. He had also admitted that actual transaction was 114 tolas instead of 116 tolas 5 anns as shown in the show cause notice. In regard to gold and gold ornaments weighing 398.900 gms the appellant had stated that 29.300 gms. were in the shape of ornaments viz., one pair of necklace without chain, one pair of ring and one pair of tob and had contended that these were made for customers as per their orders out of the old gold ornaments received from them. The remaining quantity was primary gold of which 51.900 gms are of 22 carat purity and 317.700 gms are of 15 carat purity.
Regarding 51.900 gms of primary gold he had stated that these were melted from ornaments for the customers out of customers' orna ments and the balance quantity of 317.700 gms of gold of 15 carat purity have been collected as re made are sweepings of the last 14 years. The learned Collector did not accept the contention of the appellant and had confiscated the seized goods under Section 71 ibid. Out of 398.900 gms, 51.900 gms of primary gold and 317. 00 gms of sweepings of gold of 15 carat were absolu tely confiscated. However, in respect of 29.300 gms of new assorted gold ornaments of 22 carat purity, the appellant was given an option to redeem the same after payment of fine of Rs. 2,000/ under Section 73 ibid. For the contravention of provisions of 11B and 27 ibid he had imposed a personal penalty of Rs. 50,000/ under Section 74 ibid. Being aggrieved from the aforesaid order the appellant has come in appeal before this court.
3. Shri A.B. Chatterjee, Consultant has appeared on behalf of the appellant and has reiterated the facts. He has pleaded that trie appellant had duly applied for the licence to the West Bengal Government and he had received two post cards dated 10th February 1964 and 18th June 1966 which appears at pages 3 and 7 of the Paper Book from the Joint Secretary, Govern ment of West Bengal and Dy. Secretary, Govt. of West Bengal, Gold Cell desiring the appellant to take delivery of the certificate recognising him as a self employed goldmith. He has also submitted that the appellant was a gold smith and the mere fact that the licence has not been produced and for the statement at the time of seizure that he does not have any licence no adverse inference should be drawn. He has also submitted that the seizing officers were not experts and the purity of gold mentioned by them is not correct. He has also challenged the imposition of fine in lieu of confiscation of gold jewellery, of Rs. 2000/ and has pleaded that the fine is highly excessive and in those days the value of the gold was just Rs. 30/ per gm and the fine in lieu of 29.300 gms is Rs. 2,000/ which is on the excessive side. He has also argued that the value of the sweepings is also highly excessive. He has stated that the appellant did not maintain any G.S. 13 Register and has admitted the violation of provisions of Section 55 of the Gold Control Act, 1968. He has submitted that the seized account books may be treated as records provi ded under the Gold Control Act. Lastly, he has pleaded that the penalty is highly excessive and has pleaded for acceptance of the appeal.
4. In reply, Shri B, Bhowmik, the Id. JDR has referred to the Paper Book filed by the respondent and the statement of the appellant dated 20 12 1977. The English translation of the statement of Shri Santosh Kumar Dey is reproduced below : "I, Sri Santosh Kumar Dcy Son of Late Bhuban Mohan, to day on 20 12 1977, I am rendering this statement voluntarily in presence of Gold Control officers. The gold control officers with search authorisation searched my residance at 8, Salt bake Lane and my shop at 31/1, Sada nanda Road, Calcutta. On search, they have recovered from the iron safe of my shop the primary gold of different sizes weighing 51.900 grams and the new gold ornaments consisting of necklace, ring and top weighing 29.300 gms remnants of the old gold (include dust mixed up with remnants of gold after brush of) the weight of which is 317.700 gms and total wt. is 398.900 gms. I myself manufacture the gold ornaments and repair the same without having any certificate or any licence. I do all these works according to the orders placed by the customers. Since 1 could not seize these gold ornaments and all these are recorded in the panchnama. I have received a copy of the said panchnama as token of seized gold/gold orna ments. These seized gold were weighed by me.
Apart from this they have seized these private books of A/c. The separate panchnama was pre pared for the search of my residence. The search was conducted peace fully without incurring any loss to me.
The ld. Jr. D.R. has pleaded that the apppellant had no licence as a jeweller or as a certified goldsmith. He has also submitted that the post cards issued by the Government of West Bengal intimating the appellant to collect his certificate as a goldsmith do not help him. He has pleaded that even upto this moment the appellant has not been able to produce a copy of the said certificate. Me has also objected that the appellant cannot raise the plea of valuation at this stage. He has pleaded for dismissal of the appeal or in the alternative if this court feels proper the case may be remanded to the lower authorities.
5. In reply, Shri Chatterjee has referred to the contents of the revision application. He has submitted that in the revision application, the appellant had duly mentioned the names of the customers. He had also stated that subsequently the appellant had obtained a licence from the Gold Control Authorities, Calcutta vide certificate dated 30th January 1978. A copy of the same was attached with the Memorandum of Appeal. The ld. consultant has pleaded for acceptance of the appeal or in the alternative he has pleaded for reduction of fine and penalty.
6. After hearing both the sides and going through the facts and circum stances of the case, we find that even in this court the appellant has not filed a copy of his licence, as provided under Section 39 of the Gold Control Act, 1968. The ld. consultant's argument that the estimation of the purity (fineness) of gold by the seizing officers does not help him. The Revenue has accepted the purity of the gold as declared by the appellant himself at the time of seizure and subsequently, he has accepted the same even in reply to the show cause notice. The appellant's argument that the private books of accounts maintained by him may be treated as a substitute for G.S. 13 Register cannot be accepted. Accordingly, we uphold the findings of the ld.Collector of Central Excise, Calcutta. The ld. consultant's argument that the fine in lieu of confiscation at Rs. 2,000/ is excessive does not help him in any way as the Id. consultant' has not produced any evidence as to the rate prevalent in the market on the date of seizure.
The option for Rs. 2,000/ given as a fine in lieu of confiscation is in order and no interference is called for. Accordingly, I uphold the absolute confiscation of 369.600 gms of gold ornaments and primary gold and the option to redeem 29.300 gms. of new assorted gold ornaments of 22 carat purity after payment of a fine of Rs. 2,000/ . However, we feel that the penalty imposed by the ld. Collector is highly excessive.
To meet the ends of justice we reduce the penalty to Rs. 35,000/ (Rupees thirty five thousand) only. Accordingly, the appellant gets a relief of Rs. 15,000/ (Rupees fifteen thousand only). Except for this modification, the appeal is rejected.
7. The Revenue has filed a Cross Objection under Section 81 (5) of the Gold Control Act, 1968, which was presented in the Registry on 8th August, 1983. The order of the ld. Collector of Central Excise is dated 6th November 1978. Before the formation of the Tribunal, the provisions of old Sections 80,81 and 82 ibid related to the filing of appeal, power of revision of the Administrator and power of revision of the Central Government and there was no provisions as to the filing of Cross Objection by the Respondent. The pending appeals filed before the Gold Control Administrator were transferred to the Tribunal under Section 82(K) ibid In consequence of the amendment the provisions only provide for a new form and does not create any new rights in favour of the respondent. The respondent has also not mentioned in Col. No. 2 of the Cross Objection (Form G.A. 4) the date of receipt of notice of appeal. The cross objection filed by the respondent is in support of the order passed by the Collector of Central Excise.
8. We hold that in the transferred matters the respondent does not get n. right to file the cross objection. Any substantive amendment in the Act cannot have retrospective effect as to the enlargement of the rights of the pi:ties unless the Legislature has made specific mention of the same. It was held by the Hon'ble Supreme Court in the case of Ahmedahad Mfg. & Calico Printing Co. Ltd. v. Mehta reported in 48 I.T.R. (S.C.) 154. The Hon'ble Privy Council in Delhi Cloth & General Mills Co. Ltd. v. C.I.T. reported in 2 I.T.C. 439, 443 that while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. My learned brothers, while deciding the appeal of M/s. Associated Capsules Pvt. Ltd., Bombay v.Collector'of Customs, Bombay reported in 1983 E.L.T. 809, had held that the right of cross objection arises only when the party demanding such right had a right of an appeal and did not exercise such right and wants to file cross objection, when the other party has filed an appeal. The Respondent admittedly had no right of an appeal. Therefore, the Respondent cannot claim a right to file cross objection. The prayer, there fore, of the respondent, for grant of time to enable him to file cross objections for the aforesaid reasons was, by summary order dated 15 12 1982, rejected.
9. In view of the above observation, we hold that the respondent had no right to file a cross objection. The Cross Objection filed by the respondent is dismissed.