TMI Blog1987 (8) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be refused for the renewal of the licence on account of the fact that in 1982 the Department had filed a case against him which had been adjudicated by the Order No. XVII(GC)S-21/82, dated 23-9-1983 of the Deputy Collector of Customs (P) Gold Control under which he had ordered confiscation of foreign marked gold weighing 116.664 gms. and levying a personal penalty of Rs. 500/- and Rs. 1000/-. On the basis of the show cause notice the Deputy Collector passed the order on 25-5-1987 rejecting the application of Shri Modi for the renewal of the Gold Dealer s Licence for the period commencing from 1-1-1987. Against the Deputy Collector s order Shri Modi filed the appeal to the Collector (Appeals) who also rejected the first appeal in his order dated 30-6-1987 which was issued on 3-7-1987. Hence, Shri Modi had approached the Tribunal by way of the present appeal against this order. Shri Modi had also asked for the stay of the Collector s order. In reply to the query from the Bench Shri Gujaral clarified that the applicant did not request the Collector (Appeals) for the stay of the Deputy Collector s order as the Collector agreed to take up the appeal for consideration on merits an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f stay granted by the Collector (Appeals). Accordingly he prayed for the stay of the operation of the orders of the Deputy Collector and Collector (Appeals), Bombay. 3. On behalf of the Collector, Shri N.K. Pattekar submitted that the Deputy Collector s order was quite legal and proper. He had given cogent reasons for rejecting Shri Modi s application for the renewals of the licence. Besides, under Section 82A no provisions were available under which the Tribunal could stay the operation of the orders of the lower authorities. Shri Pattekar was informed that the application did not resort to Section 82A in seeking the stay but had invoked the ancillary and incidental power of the Appellate authority to seek the stay. However, considering the facts of the case Shri Pattaker submitted that the applicant did not make out any case for staying the operation of the lower authorities orders. Accordingly, he submitted that the application should be rejected. 4. We have examined the submissions made on both the sides. The applicant has requested for the stay and immediate decision in the matter. As mentioned, the Deputy Collector s order has the effect of closing down his business as G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Member (Technical) 5. [Order per : K. Gopal Hegde, Member (J)]. - I have had the advantage of going through the order proposed by brother Dilipsinhji. I respectfully disagree with his conclusion that the application should be rejected. 6. The following facts are either admitted or over which there is no controversy. The applicant had been granted gold dealers licence in the year 1977. It was being renewed from time to time uptill 31-12-1986. 7. The Deputy Collector of Customs (P) Gold Control by his order dated 28-9-1983 imposed a penalty of Rs. 1,000/- on the appellant under Section 112 of the Customs Act for the alleged possession of a gold biscuit weighing 10 tolas. The appeal filed by the appellant against the said order was rejected by the Collector of Customs (Appeals), Bombay, by his order dated 30-1-1985. The applicant herein preferred an appeal against that order before the appellate Tribunal and the same is pending for consideration. 8. On 20-1-1986 a show cause notice was issued to the appellant as to why his application for renewal of licence should not be rejected under Section 27(6)(b) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in reply to the query from the Bench Shri Gujaral classified that the applicant did not request the Collector (Appeals) for the stay of the Deputy Collector s order as the Collector agreed to take the appeal for consideration on merits and disposal immediately . That the Gujaral submitted was that the applicant did make an application for stay before the Collector (Appeals) and since the Collector (Appeals) agreed to decide the appeal finally on the basis of the facts already on record the stay petition was not proceeded with. In the paper book filed by the applicant the appellants has annexed the stay application filed before the Collector (Appeals) and the prayer in that application was to hear his stay petition as well as the appeal out of turn as a special case on priority basis. In his order the Collector (Appeals) has deserved the appellants had actually filed the stay petition and during the course of personal hearing, it was agreed that stay petition shall not be proceeded with and the case will be decided finally on the basis of the facts already on record . 13. Brother Dilipsinhji had rejected the stay application hot only on merit but also on the ground that grantin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l against that order was disposed of on 30th January, 1985. But then the applicants licence was neither suspended nor cancelled and no action was also taken till 20-1-1986. On the other hand, his licence was renewed according to applicants twice during this period. On 20-1-1986 a show cause notice was issued to the applicant as to why his application for renewal should not be rejected and the applicant sent a reply that he had preferred an appeal against the order dated 30-1-1985 before the Tribunal and that his appeal was pending. Therefore, till the disposal of the appeal no action should be taken. The appellant was allowed to carry on gold dealers business during the year 1986. On the very same ground another show cause notice was issued on 31-12-1986. The appellants sent a similar reply. But on this occasion the Deputy Collector proceeded to reject the application for renewal, of the licence. Now it is seen after the Collector (Appeals) rejected the applicants appeal on 30-1-1985 there was no allegation against the applicant that he had contravened any of the provisions of the Gold Control Act or the Rules made thereunder or that he had contravened any term or condition of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled appeals before the Collector (Appeals) contending that the renewal should have been for the normal period of 3 years. Their appeals were allowed by the Collector (Appeals) against which the Collector of Customs (P) preferred appeals before the Tribunal and sought stay of the operation of the order of the Collector (Appeals). Unlike this case, it appears that the licences of those gold dealers were suspended for a period of one week because they had violated certain provisions of the Gold (Control) Act. Thereafter the Deputy Collector renewed the licence for one year but in appeal he was directed to renew for 3 years. As state earlier the Collector came up for stay of that order. This Bench rejected the Collector s request. While rejecting the Collector s prayer the Bench observed if the Deputy Collector had considered fit to renew the licence for a period of one year if inspite of his earlier order of suspension, we see no justifiable reason to grant the stay now sought for. There is considerable force in the contention of Shri Shah that irreparable injury would be caused to the respondent if the stay is to be granted. It is not the case of the department that during the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Members of the Tribunal. Point of Difference 19. Whether on the facts and in the circumstances of the case the application should be rejected as held by Member (J) or should be allowed as held by Member (3). Sd/- (K.S. Dilipsinhji) Member (T) Bombay ,20-7-1987. Sd/- (K. Gopal Hegde) Member (J) 20. [Order per : K.L. Rekhi, Member (T)]. - Since there was a difference of opinion between the two learned Members of the West Regional Bench, the Hon. President has assigned the matter to me for hearing and disposal. After due notice and supply of copies of the orders of the two learned Members of the West Regional Bench and the difference of opinion point, I have heard both sides at Bombay today. Shri B.B. Gujaral, Advocate and Shri B.M. Bedkar, Consultant represented the applicant. Shri N.K. Pattekar, J.D.R., represented the respondent. Both sides stated their respective points of view as already discussed in the orders recorded by the two learned Members of the West Regional Bench. The learned advocate of the appellant particularly stressed the points - (1) having dropped the show cause notice for 1986 licence and renewed the said licence pending final outc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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