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Collector of Central Excise Vs. Smt. Ratnabai - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Tamil Nadu
Decided On
Reported in(1985)(20)ELT421Tri(Chennai)
AppellantCollector of Central Excise
RespondentSmt. Ratnabai
Excerpt:
.....been lodged by her on 19-5-82. it is seen that on the sudden death, due to heart attack, of tejraj jain, gold dealer licensee no. 3/71, on 15-5-82, ratna bai, wife of tejraj jain, wrote a letter to the assistant collector of central excise, vellore on 19-5-82 requesting that the licence standing in the name of her husband may be transferred to her name and also indicating that her two boys, madan jain, aged 24 years and mahavir jain, aged 20 years, who were helping and assisting their father during his life time for about 8 and 5 years respectively, would assist her in carrying on the business and will be managing the same. on 3-8-82, the department informed the respondent to apply in the prescribed form, after payment of fees ; such an application was received on 7-8-82. on the score.....
Judgment:
1.Appeal under Section. 81 of the Gold (Control) Act, 1968 praying that in the circumstances stated therein, the Tribunal will be pleased to set aside the order of the Collector of Central Excise (Appeals), Madras, dated 17-11-83 in No. 180/83(M) and restore the order of the Deputy Collector of Central Excise (Gold), Madras, dated 1-9-83 in C.No. XVII/7/102/82-GC.2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri J.M.K. Sekhar, Senior Departmental Representative for the appellant and upon hearing the arguments of Shri S. Padmanabhan, Representative for the respondent, the Tribunal makes the following, order : 3. This is an appeal by the Collector of Central Excise, Madras, against the order of the Collector of Central Excise (Appeals), Madras, referred to above, directing the Deputy Collector of Central Excise (Gold) to examine the application of the respondent, Smt. Ratna Bai for transfer of the gold dealer's licence which stood in the name of her deceased husband Tejraj Jain, treating that the application had been lodged by her on 19-5-82. It is seen that on the sudden death, due to heart attack, of Tejraj Jain, gold dealer licensee No. 3/71, on 15-5-82, Ratna Bai, wife of Tejraj Jain, wrote a letter to the Assistant Collector of Central Excise, Vellore on 19-5-82 requesting that the licence standing in the name of her husband may be transferred to her name and also indicating that her two boys, Madan Jain, aged 24 years and Mahavir Jain, aged 20 years, who were helping and assisting their father during his life time for about 8 and 5 years respectively, would assist her in carrying on the business and will be managing the same. On 3-8-82, the Department informed the respondent to apply in the prescribed form, after payment of fees ; such an application was received on 7-8-82. On the score that this second communication was received after a lapse of the 60 days referred to in Section. 103 of the Act, the application was rejected vide order C.No. XVII/7/102/82-GC dated 1-9-83. Considering an appeal against this order, the Collector of Central Excise (Appeals) held that "rules have to be implemented not in a mechanical and wooden manner, especially when an application has been made within a period of seven days of the occurrence of the tragedy in the family," and passed the impugned order.

4. Before us, in the present appeal, it has been urged on behalf of the Collector that an application in the prescribed form and payment of the necessary fee are statutory requirements and they are mandatory. Hence it was not open to the Collector (Appeals) to have treated the communication dated 19-5-82 which had been received in time, as an application for transfer under the Act.

5. Section. 103 of the Act provides for transfer or transmission of business of a licensed dealer by succession, intestate or testamentary to the heir or legatee. All that is needed is for the heir or legatee to make an application for the issue of a licence in accordance with the provisions of the Act. This section further provides that until such an application has been considered and finally disposed of, the heir or legatee could continue to carry On the business as a gold dealer unless he is informed that licence cannot be granted earlier.

Thus, the main object of the section appears to be to provide an economic activity to the heir or legatee to sustain himself with a source of activity with which the elder member of the family was associated. Rule 5(2) of the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968 provides that every application for issue of a licence as a gold dealer shall be m form G.S. 6 and shall be accompanied by a copy of T.R. 6 evidencing payment of fee. Form G.S. 6 itself refers to payment of fee and enclosure of copy of T.R. 6 therewith ; in the schedule, details of the premises to be used, main division or sub-division of the premises, safe room and other places of storage, number of shifts per day worked, number of persons employed, names of staff, number of workmen working in the premises per shift, broad details of machinery and power used, other manufacturing details quantity, description and purity of gold received during 12 months ending 31st December, and quantity of ornaments and articles sold to persons, other than licensed dealers, during the preceding twelve months are to be furnished. Except for tha name and addresses of partners referred to at SI. No. 6 of the schedule, other details are not likely to have changed much, if at all, during the few days between the death of Tejraj Jain and the date of the first application, viz.

19-5-82. We would, therefore, take it that substantially the information required in the schedule would be in the possession of the Department itself. Maxwell on The Interpretation of Statutes observes : "It is impossible to lay down any general rule for determining whether a provision is imperative or directory. "No universal rule", said Lord Campbell L.C., "can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed". And Lord Penzance said : "I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter ; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act ; and upon a review of the case in that respect decide whether the matter is what is called imperative or only directory." Thus, one has to look at the real intentions of the Legislature by attending to the whole scope of the statute to be construed in coming to a decision whether a requirement is mandatory or directory. A reading of Section 103 of the Act and the form of application as set out earlier, leaves no doubt in our mind that the requirement of filing an application in the prescribed form is directory and not mandatory in a case where transfer is sought on grounds intestate, or succession.

Accordingly, we agree with the view of the Collector (Appeals) and dismiss the present appeal.

6. In passing we would observe that Rule 2(b) of the Gold Control (Licensing of Dealers) Rules, 1969, requires the licensing authority to have regard to the experience of the applicant with regard to the dealing in, or making, manufacturing, preparing, repairing or polishing of ornaments. In her letter of 19-5-82, the respondent had written to say that her two sons would be assisting her in the business. Being devolution by succession, the property of the firm would pass on not only to the wife but also to the sons. The application from the widow may therefore be treated as one on behalf of herself and the two sons and disposed of accordingly.


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