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Sri Nath Murari Lal, Saraf Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petition No. 1295 of 1976
Judge
Reported in1984(2)ECC378; 1983(12)ELT467(All)
ActsGold Control Act, 1968 - Sections 50(1); Gold Control (Licensing of Dealers) Rules, 1969 - Rule 3
AppellantSri Nath Murari Lal, Saraf
RespondentUnion of India (Uoi) and ors.
Excerpt:
gold control - licence--cancellation--show cause notice for cancellation on ground of low turnover--rejection of petitioner's explanation and cancellation of licence--appeal--appellate authority not considering sufficiency of reasons for low turnover as advanced by petitioner and rejecting appeal--similar rejection of revision--legality--gold (control) act, 1968, section 50(1)--gold control (licensing of dealers) rules, 1969, rule 3(ee). - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - in the circumstances the orders of the collector, central excise, allahabad as well as the central government cannot be said to be valid orders......licensing fee. thereafter the petitioner was served with a notice by the assistant collector, central excise, varanasi, respondent no. 3 calling upon him to show-cause why their licence should not be cancelled under section 50(1) of the gold control act, 1968 in view of the fact that the transactions made by the petitioner were too low within the meaning of rule 3(ee) of the gold control (licensing of dealers) rules, 1969, hereinafter referred to as the rules. the petitioner replied to the show-cause notice and also appeared through counsel before the assistant collector, central excise, varanasi. the assistant collector, central excise rejected the petitioner's application for the grant of licence. the petitioner filed an appeal before the collector, central excise, allahabad which.....
Judgment:

B.N. Sapru, J.

1. The petitioner was holding a licence under the Gold Control (Licensing of Dealers) Rules, 1969 for the year 1973-74. The petitioner applied for renewal of their licence in the year 1974 alongwith the requisite licensing fee. Thereafter the petitioner was served with a notice by the Assistant Collector, Central Excise, Varanasi, respondent No. 3 calling upon him to show-cause why their licence should not be cancelled under Section 50(1) of the Gold Control Act, 1968 in view of the fact that the transactions made by the petitioner were too low within the meaning of Rule 3(ee) of the Gold Control (Licensing of Dealers) Rules, 1969, hereinafter referred to as the Rules. The petitioner replied to the show-cause notice and also appeared through counsel before the Assistant Collector, Central Excise, Varanasi. The Assistant Collector, Central Excise rejected the petitioner's application for the grant of licence. The petitioner filed an appeal before the Collector, Central Excise, Allahabad which also met the same fate and the petitioner's revision was also dismissed by the Central Government by its order dated 31-12-1978.

2. Aggrieved by the aforesaid orders, the petitioner has filed the present writ petition. The petitioner did not dispute the fact that his turnover was too low within the meaning of Rule 3(ee) of the Rules. The case of the petitioner was that Sri Nath is the father of Murari Lal and both were partners of the firm. Sri Nath father of Murari Lal was suffering from T.B. and severe disabilities due to which he could not look after the business. The urthsr case of the petitioner is that the Munim was only to look after the cash transactions and not the business in gold and as such the turnover was ftoo low. The Assistant Collector, Central Excise rejected these arguments on behalf of the petitioner on the ground that the shop was functioning and Munim was attending the transactions and he found that as the transactions were too low, the licence had to be refused in view of the provisions of Rule 3(ee) of the Rules. In the memorandum of appeal filed by the appellant before the Collector, Central Excise the ground of illness was again reiterated and it was also reiterated that the Munim was not looking after the sale of gold. The Collector, Central Excise in his appellate order dismissed the appeal observing that the appellant has also not advanced any hew reason for their too low turnover. The Collector, Central Excise did not go into the aforesaid plea and record his finding with regard to the plea of the appellant that Sri Nath was ill and therefore, the turnover was too low. In the revisional order of the Central Government also there was no reference to the plea of the petitioner. In the circumstances the orders of the Collector, Central Excise, Allahabad as well as the Central Government cannot be said to be valid orders.

3. Explanation (1) to Rule 3(ee) of the Rules runs as follows : -

'For the purposes of this clause, turnover shall be deemed to be too low if it is on the average, not more than fifty grammes per month except where the applicant satisfies the Administrator that there are sufficient reasons for an average monthly turnover of lower than fifty grammes.'

Thus, the licence can be granted even though the turnover is too low. If the applicant satisfies the Administrator with the sufficient reasons for an average monthly turnover of lower than fifty grammes. The alleged illness was the relevant factor which can be taken into account for determining whether there was sufficient cause for the turnover being too low. This plea of the petitioner that he was ill has not been properly appreciated either by the Collector, Central Excise while deciding the appeal or by the Central Government while deciding the revision. In the circumstances, we find that the Collector, Central Excise and the Central Government had not properly applied their mind to the requirement of Explanation (I) to Rule 3(ee) of the Rules.

4. In the result, we allow the petition and quash the order of the Collector, Central Excise, Allahabad in appeal (Annexure '3' to the writ petition) dated 2-1-1975 as also the revisional order of the Central Government (Annexure '4' to the writ petition) dated 22-12-1975. We direct that the appellant's appeal shall be re-heard by the Collector, Central Excise, Allahabad which will be decided afresh keeping in mind the observations made above. The appeal shall be decided at a very early date. The petitioner is functioning as gold dealer under an interim order dated 18-3-1980. We direct that till the disposal of the appeal the respondents will not interfere with the petitioner's functioning as a gold dealer provided the petitioner deposits the requisite fee and makes the requisite application.


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