COLLECTOR OF CUSTOMS PREV Vs. GOPALJI JETHALAL SONI

JUDGEMENT

(1.) THIS appeal is directed against the Order of the Collector of Customs (Appeals) bearing No.S/49-275/87-GC, dated 7-11-1988, where he has set aside the order passed by the Deputy Collector of Customs bearing No. 100/87 (DC) (File No.XVII(GC)7-14/86), dated 26-6-1987 and has directed the department to grant gold dealer's licence to the respondent. The department being aggrieved by the said order they filed the present appeal.

(2.) The respondent herein vide his application dated 14-1-1986 in G.S.6, had applied for grant of gold dealer's licence. The matter was investigated vide Rule 2 of the Gold Control (Licensing of Dealers) Rules, 1969. The investigations revealed that the applicant was a partner in M/s. Bombay Gold Industries, Bombay from March 1982 to October, 1985 and as such he had not completed the requisite period of five years as the partner in the said firm. It was also found that the application has not been made within 60 days and as such proviso (e) to Clause (f) to Rule 2 of the said Rules was not attracted. The department therefore, issued a show cause notice as to why his application for grant of licence should not be rejected. The respondent, however, did not file any reply nor did he appear before the competent authority in response to the said show cause notice. The Deputy Collector, therefore, vide his order dated 26-6-1987 rejected the application of the respondent holding that the case was not covered under proviso (e) to clause (f) of Rule 2 of the Rules and that the turnover figures, contemplated to be considered under Clause (f) of Rule 2, did not warrant any further increase in the number of licence holders. The respondent therefore filed the appeal to the Collector (Appeals) who vide his order dated 7-1-1988, rely upon principles laid down in decision of the CEGAT reported hi 1988 (17) ECR 389 in the case of Shri Shantilal G. Jain, observed that the turnover was enough so as to permit increase in the number of licence of dealers, and that there was no objection in granting the licence to the respondent. He, therefore, directed that the licence be granted as prayed for to the respondent.

(3.) SHRI D.H. Shah, the learned advocate, appearing on behalf of the respondent herein, however supported the order of the Collector (Appeals) and submitted before us that the appeal over the said order could only be entertained, if the order is bad in law. He also submitted before us that here was a case where one of the partners was separating from the partnership firm and the partnership firm was already possessing a gold dealers licence. He also took us to the judgment of the Collector (Appeals) where the Collector has considered the turnover aspect and has held that there was no justification in witholding the licence on the point of there being no adequate turnover of gold. He further argued that there is no criteria laid down as contemplated under Section 27(6) of the Gold (Control) Act as to the number of gold dealers of the standard for turnover for issuance of licences in the cities like the metropolis of Bombay and further urged that under the circumstances, Rule 2(f) cannot be attracted. He also contended that the Rules are not mandatory in nature and that discretion was always available to the licensing authority to grant the licence.