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Smt. Ashibai C. Oswal Vs. Gold Control Administrator - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Reported in(1984)(16)ELT382Tri(Mum.)bai
AppellantSmt. Ashibai C. Oswal
RespondentGold Control Administrator
Excerpt:
1. this appeal, purported to be under section 81 of the gold control act 1968 will hereinafter be referred to as the act, arises out of and is directed against the order-in-original bearing no f. xvii (gc) 7-108/adj/82 pune dated 16th september 1982 passed by the additional collector of central excise and customs, pune by which he refused to renew the gold dealers licence. the appellant smt. ashibai c. oswal is the proprietress of m/s. bhagji devaji & co. till the year 1963, her husband was the proprietor and he held a gold dealers licence. subsequent to the death of her husband, the appellant held the gold dealers licence. on 18th february, the assistant collector of central excise, pune called upon the appellant to show cause why her gold dealers licence application for the year.....
Judgment:
1. This appeal, purported to be under Section 81 of the Gold Control Act 1968 will hereinafter be referred to as the Act, arises out of and is directed against the Order-in-Original bearing No F. XVII (GC) 7-108/Adj/82 Pune dated 16th September 1982 passed by the Additional Collector of Central Excise and Customs, Pune by which he refused to renew the gold dealers licence.

The appellant Smt. Ashibai C. Oswal is the Proprietress of M/s.

Bhagji Devaji & Co. Till the year 1963, her husband was the Proprietor and he held a gold dealers licence. Subsequent to the death of her husband, the appellant held the gold dealers licence.

On 18th February, the Assistant Collector of Central Excise, Pune called upon the appellant to show cause why her gold dealers licence application for the year 1982 should not be rejected. The appellant sent a reply dated 27-2-82. She contended inter alia that the Assistant Collector has no competence to consider the renewal application. Thereafter the Assistant Collector informed the appellant to make her submissions to the Additional Collector and accordingly the appellant made her submissions before the Additional Collector. The Additional Collector, as stated earlier, rejected the application of the appellant for a gold dealers licence. Feeling aggrieved with the order, the appellant has preferred this appeal under the Gold Control Act.

3. As the impugned order was passed by the Additional Collector of Central Excise, Pune, the appeal was posted for hearing on a preliminary issue, namely, as to whether against the order of the Additional Collector an appeal lies to the Tribunal.

4. Shri G.C. Solanki, the learned advocate for the appellant, submitted that excepting in the matter of licence, in all other matters, no appeal lies to the Tribunal against the order passed by a Gold Control Officer who is lower in rank than a Collector of Central Excise.

5. Shri Krishan Kumar, the Junior Departmental Representative, on the other hand, contended that against the order of the Additional Collector, the appeal lies to the Tribunal in all matters. According to Shri Krishan Kumar, under the Central Excise Rules, the Collector includes Additional Collector. Therefore, as against the order of the Additional Collector passed under the Gold Control Act, the appeal lies to the Tribunal. In that connection, he also placed reliance on the decision of the larger Bench of the Tribunal reported in 1983 E.L.T.page 1057.

6. In support of his contention that as against the order of the Additional Collector of Central Excise, the appeal does not lie to the Tribunal, Shri Solanki, the learned Advocate for the appellant, relied on the provisions of the Gold Control Act. He particularly relied on the provisions contained in Sections 78, 80 and 81 of the Act and also to the Notification issued by the Government of India under Clause (b) of Section 78.

7. As has been stated earlier, the hearing of the appeal was posted for consideration of a limited question, namely, as to whether an appeal against an order passed by the Additional Collector of Central Excise in exercise of the powers conferred under the Gold Control Act lies to the Appellate Tribunal. In order to answer the above question it is necessary to refer to certain provisions of the Act. Section 4 empowers the Central Government to appoint an Administrator and Gold Control Officer for the purpose of carrying out the purposes of the Act and for the purposes of enforcing the provisions of the Act respectively.

"A gold control officer shall, subject to such limitations, restrictions and conditions as the Central Government may think fit to impose, exercise such powers and discharge such functions as are specified or conferred, as the case may be, by or under the Act." "Any confiscation may be adjudged or penalty may be imposed under this Act- (a) without limit, by a gold control officer not below the rank of a Collector of Central Excise or of Customs; (b) subject to such limits as may be specified in this behalf, by such other Gold Control Officer, not below the rank of a Superintendent of Central Excise, as the Central Government may, by notification, authorise in this behalf." (1) "Any person aggrieved by any decision or order passed under this Act by a Gold Control Officer lower in rank than a Collector of Central Excise or of Customs may appeal to the Collector (Appeals) within three months from the date of the communication to him of such decision or order." The rest of the section is not relevant for our purpose.

(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." "Gold Control Officer" means a Gold Control Officer appointed under Section 4.

13. From the plain reading of the two Sections, namely, Sections 80 and 81, it is clear that an appeal against a decision or an order passed under the Act by a Gold Control Officer lower in rank than a Collector of Central Excise or of Customs will lie to the Collector (Appeals) and not to the Appellate Tribunal. We are therefore required to consider whether the Additional Collector of Central Excise while exercising the powers conferred under the Gold Control Act as a Gold Control Officer is an officer lower in rank than a Collector of Central Excise or not.

14. From the provisions of Section 78 of the Act it is clear that the Collector of Central Excise and Customs were given unlimited jurisdiction in the matter of confiscation and imposition of penalty.

But so far as the other Gold Control Officers are concerned such unlimited power has not been conferred. Their powers are limited both with regard to the confiscation and imposition of penalty. The limit shall have to be specified by the Central Government. In exercise of the powers conferred by Clause (b) of Section 78 the Central Government issued a Notification S.O. 985 (E) dated 27th December, 1980. S.O. 985 (E) dated 27th December, 1980-In exercise of the powers conferred by Cl. (b) of Section 78, read with Sub-section (2) of Section 116 of the Gold Control Act, 1968 (LV of 1968), and in supersession of all the notifications on the subject, the Central Government hereby authorises the gold control officers of the rank indicated in col. (2) of the table below to exercise, subject to the limits specified in col. (3) of the said table, the powers of adjudication, confiscation and imposition of penalty conferred by the said Act :-------------------------------------------------------------------------------- S. No. Rank of Officer Limits of the power-------------------------------------------------------------------------------- (1) (2) (3)-------------------------------------------------------------------------------- 1. (a) Assistant Collector of Where the value of the gold liable to Central Excise confiscation (whether such gold is Available for confiscation or not) Assistant Collector of (i) Where the value of the gold liable Customs to confiscation (whether such gold is2. (a) Deputy Collector of available for confiscation or not) Central Excise does not exceed Rs. l,00,000/-; (b) Deputy Collector of (ii) Where any conveyance or animal Customs is liable,to confiscation under Section 72 but the gold for the Additional Collector (i) Where the value of the gold liable of Customs to confiscation (whether such gold is available for confiscation or not) does---------------------------------------------------------------------------------- 15. As has been stated earlier, the above Notification was issued in pursuance of the powers conferred on the Central Government under Clause (b) of Section 78. Under Section 78 the Collector of Central Excise and Customs had unlimited jurisdiction in the matter of confiscation and imposition of penalty but in respect of other Gold Control Officers they did not enjoy unlimited powers and their limit was left to be specified by the Central Government. In the Notification referred to above, the Central Government specified the limits of other Gold Control Officers. The other Gold Control Officers referred to in the Notification are Assistant Collector of Central Excise, Assistant Collector of Customs, Deputy Collector of Central Excise, Deputy Collector of Customs, Additional Collector of Customs and in the amended Notification, the Additional Collector of Central Excise was also included. Now if we are to accept the contention of Shri Krishan Kumar, the learned Junior Departmental Representative, that the Additional Collector of Central Excise is equal in rank to that of the Collector of Central Excise, the necessity for issufc of a Notification under Section 78(b) limiting the power of the Additional Collector does not arise. It is significant to note that in the Notification it is specifically stated that the Central Government authorises the Gold Control Officers of the rank indicated in column 2 of the table. In column 2 of the table, the rank of the officers are mentioned. As pointed out earlier, among the officers mentioned, Additional Collector is one of them. So, reading Section 78 and the Notification together, it is clear and explicit that the Additional Collector, who is a Gold Control Officer under the Gold Control Act, cannot be considered as a Collector of Central Excise. He has to be considered as an officer lower in rank than that of a Collector of Central Excise. The contention urged by Shri Krishan Kumar that for the purpose of determination of the rank of Additional Collector, the provisions of the Central Excise Act, shall have to be looked into is untenable. It is on account of the definition of the 'Collector' contained in the Customs Act and in the Rules under the Central Excise Act, that the larger Bench of this Tribunal, in the case referred to by Shri Krishan Kumar 1983 E.L.T. 1057, considered the Additional Collector of Central Excise as an officer holding a rank equal to that of a Collector. Such a definition is not found in the Gold Control Act. Further, there is no scope to contend that the Additional Collector of Central Excise who is conferred with the powers under the Gold Control Act by the Central Government should be considered as an officer equal in the rank of the Collector. It is only by reason of the powers conferred by the Central Government, the Additional Collector of Central Excise gets power to enforce the provisions of the Gold Control Act. While exercising the powers and discharging the functions under the Gold Control Act, he functions as a Gold Control Officer and not in his capacity as an Additional Collector of Central Excise. In considering the question whether, as a Gold Control Officer, he is an officer lower in rank than that of a Collector, we have only to look into the provisions of the Gold Control Act and not the provisions of the Central Excise or Customs Act.

16. After careful consideration of all the aspects, we are satisfied that, for the purpose of Gold Control Act, the Additional Collector of Central Excise is an officer lower in rank than that of a Collector of Central Excise and, therefore, the appeal against the order passed by the Additional Collector of Central Excise shall have to be filed before the Collector Appeals under Section 80. Appeal against the order of the Additional Collector does not lie to the Tribunal.

17. The contention of Shri Solanki that, in the matter of licences, the appeal lies to the Tribunal against the order of the Additional Collector of Central Excise is also unsound. The right to appeal to the Tribunal is conferred under Section 81 of the Act. It does not make any distinction in respect of the orders which relate to licences and other orders. Therefore, we reject the contention of Shri Solanki.

18. After careful consideration of all the aspects, we hold the present appeal is not maintainable as no appeal lies to the Appellate Tribunal against the order passed by the Additional Collector of Central Excise.

We, however, direct that the appeal papers shall be returned to the appellant for being presented, if she so chooses, before the appropriate authority. We also direct that the Collector (Appeals) shall, however, not reject the appeal on the ground of limitation if the appeal is presented within 15 days from the date of receipt of the appeal papers by the appellant on the return of the papers by the Registry.


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