1. This matter originally was a revision petition which has been transferred to the Appellate Tribunal and is taken up as an appeal for consideration.
2. The grievance of the Appellant is that gold ornaments weighing 2253.500 gms. were ordered to be confiscated with an option for redemption of the same on payment of a fine of Rs. 15,000. In the appeal it was submitted on behalf of the Appellant that he was bound by law to declare his own ornaments and not ornaments of his wife.
According to the Appellant the ornaments seized belonged to the wife and parents of the Appellant who is a partner of a firm. He also averred that ornaments found at the residential premises of the Appellant were not possessed, owned or controlled by the partners of the firm and, therefore, they need not have been included in the declaration under Section 16(7) of the Gold (Control) Act. They also submitted that merely because of a technical failure to comply with Section 16(7) of the Act relating to declaration there is no justification for an order of confiscation. Further, the Appellant acted under the honest and genuine belief that no declaration need be made and did not deliberately and in defiance of law act against the provisions of law. During the hearing the learned Counsel for the Appellant made his submissions and stated that there is no deeming provision in the Gold (Control) Act and as such while construing the expression in any capacity other than a, licensed dealer" it would not be possible to fasten a liability for declaration on behalf of wife and minor children. The declaration had been given by the partners. The Counsel also submitted that there is no justification for retention of the goods beyond the stipulated period of six months after the show-cause notice. It was also submitted that the seizure being vitiated in this case, the penalty will also be vitiated and reference was invited to the case of Assistant Collector, Customs v. D.D.Malhotra 3. Shri Yuvraj Gupta, Senior Departmental Representative, sought to bring out the distinction between the expression "gold" used in Section 79 and "goods" used in Section 66.
4. We have considered the submissions made by both sides. Section 16(7), is as follows : - "Every licensed dealer or' refiner shall make a declaration or further declaration, as the case may be, in accordance with the provisions of this section in relation to any gold owned, possessed, held or controlled by him in any capacity other than the capacity of a licensed dealer or refiner and the provisions of sub-section (5) shall not apply to such gold." 5. The argument that "capacity" as it occurs in Section 16(7) is not defined, put .forward during the hearing, is not acceptable inasmuch as it is a word for which the meaning is quite clear and no deeming provisions are necessary for this purpose. The submission that the wives of the Appellant (partners in the firm) filed declarations before show-cause notice was issued is also not relevant as the declarations were after the seizure. The argument that the seizure was vitiated has also been examined by us and we do not find any reason and no reason has been shown by the Appellant to hold that the seizure is so vitiated. We also agree with the argument of the learned Representative of the Department to the effect that Section 79 speaks of gold and word used in Section 66 is "goods". In the instant case Section 63 is not applicable as submitted by the learned Departmental Representative.
6. An examination of Section 16(7) shows that the words "in any capacity" are wide enough to attract the ornaments of the dealer's wife and to make it a legal duty for him to declare them. It has not been shown to us by the Appellant that his wife was a separate assessee of income-tax or that she was independent of him. Section 16(2) lays down as to who must make a declaration in respect, of various situations.
Hindu Undivided Family mentioned in sub-clause (g) of Section 16(2) is one of them. Therefore, in view of Section 16(7) the Appellant was bound to declare ornaments even though they belonged to his wife and by not so doing he rendered himself liable to action under the Gold (Control) Act. We, therefore, hold that the confiscation was correct.
7. We have also considered the plea that the fine of Rs. 15,000 in respect of 2200 gms of gold is harsh as no deliberate offence was committed. Considering that though an offence has been committed and confiseation is justified the offence has not been committed due to deliberate defiance of law, we are of the opinion that a lenient view may be taken. We, therefore, reduce the fine to Rs. 5000/- only.
Consequential relief may be given to the Appellant.