1. This is an appeal under Section 81 of the Gold (Control) Act, 1968 to the Tribunal against the Order No. XVII (G'C) 7-192/Adj/82 dated 30-10-82 of the Addl. Collector of Central Excise & Customs, Pune, rejecting the request of the appellants for renewal of licence of a gold dealer for the year 1982. The appellant has submitted that the Addl. Collector's order is misconceived and not in conformity with the provisions of Rule 3(ee) of the Gold Control (Licensing of Dealers) Rules 1969. As per this rule and the explanation thereunder, a licensed dealer should either be a wholesale dealer in standard gold bars, articles or ornaments or that his turnover with persons other than licensed dealers should not be too low. Under the explanation the low turnover has been defined as 50 gms. per month unless there are sufficient reasons to the contrary. In the case of the appellant the Addl. Collector of Central Excise had not appreciated the fact that he was a licensed dealer in gold and his turnover in standard gold bars was 1010 gms, for 1981-82. For the same year his turnover of gold ornaments was 356.250 gms. The low turnover was no account of the fact that he was ill with heart trouble and was not able to attend to his business for about 5 months and the medical certificate had been submitted to the Addl. Collector in support of the statement.
Thereafter, the appellant's son had fractured his leg and he had also been bed-ridden for 2 months. A medical certificate in support of this statement had also been submitted. It had been incorrect on the part of the Addl. Collector not to have considered this in coming to the finding that the turnover was low and consequently his refusal for renewal of the gold dealers licence. On the other hand the turnover of gold ornaments of the appellant for the earlier year namely 1979-80 was even lower and in spite of that the Gold Control authorities had renewed the appellant's licence as a dealer. The appellant's Advocate further submitted that the Additional Collector should have exercised the discretion in his favour and granted the request for renewal.
2. The departmental representative has contested the submissions of the appellant. He has observed that the provisions of Rule 3(ee) of the Gold Control (Licensing of Dealers) Rules, 1969 are mandatory and they have to be observed. The show cause notice took into account the low turnover of the appellant for the year 1980-81 only. But the Addl.
Collector made a reference to the appellant's turnover for 1979-80 for the sake of clarity. The appellant had sought the benefit as a wholesale dealer in standard gold bars for the first time at the stage of the appeal. Merely selling gold bars cannot make him a wholesale dealer in gold. Therefore, his appeal was liable to be rejected. The Advocate for the appellant has stated in reply that the Gold Control Act or the rules do not define a wholesale dealer. There are no provisions under the rules for licensing the wholesale dealers in gold separately from retail dealers. Therefore it is not proper to draw the distinction between the wholesale dealer in gold and in ornaments. He has therefore, requested for the appeal being allowed and the appellant's licence as gold dealer be renewed.
3. We have examined the submissions of the appellant and the respondent. The provisions of Rule 3(ee) stipulate alternative conditions namely that the applicant should either be a wholesale dealer in standard gold bars, article or ornaments or that his turnover with persons other than licensed dealers should not be too low. Thus, one of the two conditions need be satisfied only. We are accordingly in agreement with the appellant's Advocate's submission that since the appellant is a wholesale dealer in standard gold bars, the other condition that his turnover is low is not applicable to him. Since one condition has been satisfied the Addl. Collector's order for refusal of the licence is not correct. Accordingly, we set aside the Addl.
Collector's order dated 30-10-82 and direct that the appellants licence as a gold dealer for the year 1982 be renewed..