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Choksi Kantilal Sankalchand and Vs. Gold Control Administrator - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Reported in(1984)(18)ELT132Tri(Mum.)bai
AppellantChoksi Kantilal Sankalchand and
RespondentGold Control Administrator
Excerpt:
.....officers for the purpose of enforcing the provisions of the act. sub-section (4) of section 4 empowers the administrator to authorise any person as he thinks fit to exercise all or any of the powers exercisable by him under this act other than the powers under sub-section (6) of section 4. in exercise of these powers the administrator had authorised the collector of central excise & customs to exercise the powers of the administrator under section 52 of the act. it is this power that had been exercised by the collector of central excise, baroda, in the present case. the collector of central excise, baroda exercised this power by reason of the authorisation made by the administrator. for all purposes and intent the collector exercises the powers of the administrator, and therefore,.....
Judgment:
1. This appeal arises out of and is directed against the order in original bearing No. 1/82 dated 6-12-82 passed by the Collector of Central Excise, Baroda, by which he refused to induct Smt. Chandrikaben M. Bhavsar as a partner in the firm.

2. The undisputed facts are that the firm M/s. Chokshi Kantilal Sankal- chand and Bros. consisting of three partners, namely ; Shri Kantilal Sankal- chand Bhavsar, Smt. Maniben Ranchhodlal and Shri Ramanlal Sankalchand Bhavsar held the Gold dealer's licence No. ADI/84/G/68.

After the death of Shri Ramanlal Sankalchand which took place on 11-5-80 they applied for a change in the constitution of the firm and requested to induct Shri Pankaj- kumar Ramanlal Bhavsar son of the deceased and Smt. Chandrikaben Manu- bhai Bhavsar. It appears that the Collector of Central Excise approved the induction of Shri Pankajkumar but rejected the request for induction of Smt. Chandrikaben. This order of the Collector was communicated to the firm through the Assistant Collector. The appellants preferred an appeal against that order before the Appellate Collector presuming that the order was passed by the Assistant Collector. The Appellate Collector held that no appeal lies before him as the order was passed by the Collector. The firm thereafter requested for a formal order to enable them to prefer an appeal before the competent authority. Therefore, the Collector of Central Excise, Baroda, after affording a personal hearing passed the impugned order.

When this appeal was taken up for consideration, Shri Krishan Kumar, Departmental Representative raised a preliminary objection as to the maintain- ability of the appeal. He contended that the order in question was passed by the Collector of Central Excise as a delegatee of the Gold Control Administrator, and therefore, the order should be considered as an order passed by the Administrator and the Act does not provide any appeal against the order passed by the Administrator to the Tribunal.

3. Shri B.G. Merchant, learned Advocate for the appellants however contended that the Collector of Central Excise passed the impugned order as the Collector of Central Excise and not as an Administrator, and therefore, an appeal lies to the Tribunal under Section 81(1) of the Gold (Control) Act, 1968 (to be hereinafter referred to as 'the Act').

4. On merits, Shri B.G. Merchant contended that the husband of Smt.

Chandrikabcn was originally a partner of the partnership firm and he retired from the firm and took up employment, and therefore, it became necessary to induct his wife as one of the partners. Therefore the learned Collector was unjustified in rejecting the request. He further contended that the learned Collector has relied on Sub-rule (b) of Rule 2 for rejecting the request and that rule is not applicable to the facts of this case since the request was only for inducting a partner to the existing firm, and not a request for issue a fresh licence. He, therefore, urged that the order passed by the learned Collector may be set aside.

5. Shri Krishan Kumar, however, contended that admittedly Smt.

Chandrikaben is not a partner of the firm. No fresh partnership had been entered into by the parties. Allowing of induction of Chandrikaben will have the effect of constituting a new partnership in the place of an existing partnership and in that case a fresh application shall have to be made for obtaining a licence and the existing licence cannot be operated.

6. Having regard to the contentions raised by the parties to the appeal, the two questions that arise for our consideration are (i) whether the Tribunal has no jurisdiction to entertain this appeal and (ii) whether the order passed by the learned Collector is erroneous or otherwise requires to be interfered with.

7. The appointment of an Administrator and Gold Control Officers are provided in Chapter II of the Act. The Central Government has been empowered to appoint an Administrator for carrying out the purposes of the Act. The Central Government has also been empowered to appoint as many persons as it thinks fit to be Gold Control Officers for the purpose of enforcing the provisions of the Act. Sub-Section (4) of Section 4 empowers the Administrator to authorise any person as he thinks fit to exercise all or any of the powers exercisable by him under this Act other than the powers under Sub-section (6) of Section 4. In exercise of these powers the Administrator had authorised the Collector of Central Excise & Customs to exercise the powers of the Administrator under Section 52 of the Act. It is this power that had been exercised by the Collector of Central Excise, Baroda, in the present case. The Collector of Central Excise, Baroda exercised this power by reason of the authorisation made by the Administrator. For all purposes and intent the Collector exercises the powers of the Administrator, and therefore, the order passed by the Collector should be deemed to be an order passed by the Administrator. The Act does not provide for an appeal against the order of Administrator to any authority. But then Sub-section (5) of Section 4 provides 'subject to any general or special direction given or condition imposed by the Administrator any person authorised by the Administrator to exercise any powers may exercise those powers in the same manner and with the same effect af if they had been conferred on the person directly by this Act and not by way of authorisation'.

The effect of this provision is that when once the Collector is authorised by the Administrator to exercise any of his powers under the Act, the Collector becomes competent to exercise those powers in the same manner in which the Administrator would have exercised and the powers exercised by the Collector will have the same effect as the orders passed by the Administrator would have. But then the exercise of the powers by the Collector would not be as a delegatee, but independently as if conferred by the Act directly on him. In other words, the Collector will be exercising the powers authorised on his own right and not as a delegatee of the Administrator. When we brought to the notice of Shri Krishan Kumar the provisions of Sub-section (5) of Section 4 of the Act, he conceded that appeal would appear to lie to the Tribunal against the order of the Collector as provided under Section 81(1)(a) of the Act. We, therefore, hold that the Tribunal has jurisdiction to hear the appeal and the appeal is maintainable before the Tribunal.

8. As regards point No. 2 it was not contended before us by Shri Merchant that there was any change in the constitution of the partnership. If a stranger were to be inducted into the partnership, the constitution of the partnership gets changed. In that event the firm cannot transact business on the strength of the licence issued to it. The appellants in our opinion cannot request the Collector to induct a person who is altogether a stranger to the partnership firm.

Even if her husband was once a partner that does not confer any right on her to get inducted. Her claim is not based on the ground that under the law of partnership she becomes automatically entitled to be inducted as a partner on retirement of her husband as a partner. If the request of the appellant had been allowed, the constitution of the partnership firm would have changed and in that event the appellants would be required to make a fresh application for issue of a licence.

We, therefore, see no merit in this appeal, and accordingly, we reject the same.


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