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Shri Lakshuman Prasad Certified Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1984)(17)ELT177Tri(Kol.)kata
AppellantShri Lakshuman Prasad Certified
RespondentCollector of Central Excise
Excerpt:
.....27 of the gold (control) act, 1968. he has also referred to the proviso to rule 2(f) of the gold control (licensing of dealers) rules, 1969. he has pleaded that section 27 should be read with the rules and as per proviso (b) to sub-rule (f) of rule 2 the appellant is entitled to a gold dealer licence since he is a goldsmith and has pleaded that the appellant should be granted a gold dealer licence and has also pleaded that there is denial of principles of natural justice as the appellant's application for gold dealer licence has been rejected without granting a personal hearing.3. shri b. bhowmik, the learned junior departmental representative has appeared on behalf of the respondent and has pleaded that the appellant had filed an application for the issue of a licence under.....
Judgment:
1. Shri Lakshuman Prasad, Certified Goldsmith, Gopali Kuan Chawk, Arrah, District Bhojpur, Bihar, has filed an appeal being aggrieved from Order No. 1 dated the 16th February, 1983 passed by the Additional Collector of Central Excise, Patna rejecting the appellant's application for the grant of a gold dealer's licence.

2. Shri P.N. Sinha, the learned consultant has appeared on behalf of the appellant and has submitted that the appellant's application for licence on the prescribed form has been rejected in an arbitrary manner and no personal hearing was granted to the appellant and there is denial of the principles of natural justice. He has submitted that the appellant should have been granted a licence under Sub-section (6) of Section 27 of the Gold (Control) Act, 1968. He has also referred to the proviso to Rule 2(f) of the Gold Control (Licensing of Dealers) Rules, 1969. He has pleaded that Section 27 should be read with the Rules and as per proviso (b) to Sub-rule (f) of Rule 2 the appellant is entitled to a gold dealer licence since he is a goldsmith and has pleaded that the appellant should be granted a gold dealer licence and has also pleaded that there is denial of principles of natural justice as the appellant's application for gold dealer licence has been rejected without granting a personal hearing.

3. Shri B. Bhowmik, the learned Junior Departmental Representative has appeared on behalf of the Respondent and has pleaded that the appellant had filed an application for the issue of a licence under Sub-section (5) of Section 27 of the Gold (Control) Act, 1968. He has pleaded that it is a special Act and has referred to the preamble of the Indian Penal Code. He has referred to Clauses (a) & (b) of Sub-section (6) of Section 27 of the Gold (Control) Act, 1968. He has also referred to Clause (c) of Sub-section (6) of Section 27 ibid and has pleaded that there is no necessity of granting an opportunity of personal hearing before rejection of the application. He has also referred to the Andhra Pradesh High Court judgment in the case of Achuta Omkar Gupta v. Union of India and Ors. reported at page 33 of the Compilation of Judgments in Gold Control Cases (1976) published by the Government of India, Department of Revenue & Banking, New Delhi. He has also referred to the judgment of the Hon'ble Delhi High Court in the case of U.P. Co. Ltd. v. Union of India, reported in 1983 E.L.T. 329 Co-operative Federation wherein it was held that if the representation given by the petitioners in writing was considered by the authority, an oral hearing is not necessary. He has also pleaded that as per demand of gold there was no necessity of granting a licence to the appellant. He has relied on the order passed by the learned Additional Collector and has pleaded for dismissal of the appeal.

4. In reply Shri P.N. Sinha, the learned consultant has again pleaded that Section 27 of the Gold (Control) Act, 1968 has to be redd with the Gold Control (Licensing of Dealers) Rules, 1969. He has submitted that the appellant's turnover has exceeded the limit of two thousand grams as provided in Explanation 2 to sub-rule (f) of Rule .2 of the Gold Control (Licensing of Dealers) Rules, 1969. He has pleaded that Arrah is an important town and there is demand of gold. Lastly he has referred to the judgment in the case of K.R. Shriramalu v. Supdt. of Central Excise reported in (1973) 2 Mysore L.J. 80. He has cited the judgment from the Commentary on the Gold (Control) Act by K.L. Sethi, 1976 Edition at page 211 and has pleaded that the appellant's appeal should be accepted.

5. After hearing both the sides and at the time of giving dictation of the order I find that I do not have jurisdiction in disposing of this case sitting singly. This point as to the jurisdiction has neither been raised by the appellant nor by the respondent. Jurisdiction is vested with the Court by virtue of provisions of a statute. Relevant extract from Section 81 of the Gold (Control) Act, 1968 is reproduced as under : "81. Appeals to the Appellate Tribunal. (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) a decision or order passed by the Collector of Central Excise or of Customs as an adjudicating authority; (c) an order passed by the Administrator, Collector of Central Excise or of Customs or the Appellate Collector of Customs under Section 80, as it stood immediately before the appointed day; (d) an order passed by the Administrator, either before or after the appointed day, under Section 81, as it stood immediately before that day : Provided that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in Clause (b) or Clause (c) or Clause (d) where, (i) the value of the thing confiscated without option having been given to the owner thereof to pay a fine in lieu of confiscation under Section 73; or (ii) the amount of fine or penalty determined by such order, does not exceed ten thousand rupees." Section 81B of the Gold (Control) Act relates to the procedure of the Appellate Tribunal. The relevant portion is reproduced below : "The President or any other member of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where-- (a) the value of the thing confiscated without option having been given to the owner thereof to pay a fine in lieu of confiscation under Section 73; or (b) the amount of fine or penalty involved, does not exceed ten thousand rupees." There is an order passed by the Hon'ble President of the Tribunal vide Order No. 137 of 1983 dated the 19th September, 1983 which deals with the jurisdiction of cases for disposing of singly. Para 4 of the said order is reproduced as under: "4. (1) Subject to what is contained in sub-paragraphs (2) and (3) below, a matter falling under Sub-section (4) of Section 129C of the Customs Act, 1962, may be disposed of by the technical member of the concerned Regional Bench, sitting singly; and a matter falling under Sub-section (3) of Section 35D of the Central Excises and Salt Act, 1944, or under subsection (2) of Section 81B of the Gold (Control) Act, 1968, may be disposed of by the judicial member of the concerned Regional Bench, sitting singly.

(2) Where one member of the Regional Bench is not available, because of being on leave or for any reason, all matters referred to in sub-paragraph (1) above may be disposed of by the member who is in office.

(3) The provisions of sub-paragraphs (1) and (2) above shall not apply where the order against which the appeal has been filed affects more than one person, unless the provisions of Sub-section (4) of Section 129C of the Customs Act, 1962, or Sub-section (3) of Section 35D of the Central Excises and Salt Act, 1944 or Sub-section (2) of Section 81B of the Gold (Control) Act, 1968, as the case may be, are applicable in respect of every person to whom the said order relates." A simple reading of Section 81B clearly shows that Section 81B(2) of the Gold (Control) Act, 1968 vests power with this Court for disposing of cases sitting singly only where the value of the thing confiscated without option having been given to the owner thereof to pay a fine in lieu of confiscation under Section 73 or the amount of fine or penalty involved does not exceed ten thousand rupees. The instant case relates to a finding as to the appellant's right for obtaining of a licence to work as a gold dealer. This case is not covered by the provisions of Section 81B and Hon'ble President's order No. 137 of 1983 dated 19th September, 1983. In the circumstances any order passed by me sitting singly will be a nullity in the eyes of law and I transfer this case to a two-member bench and I hold that the jurisdiction of the case vests with the two-member bench. In the interests of justice I have recorded the arguments of both the sides and I am not going to the merit of the appeal.


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