TMI Blog1989 (2) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... ng appeal before us, the respondent in this matter filed a Writ Petition No. 3722 of 1988 in the High Court of Judicature at Bombay for an order directing the licensing authorities to issue the licence, pursuance of the order passed by the Collector of Customs (Appeals). In this matter, the Hon ble High Court has granted rule and further directions to issue the licence by 31-1-1989 unless the order of the Collector (Appeals) is set aside by that time. The statement is made on behalf of the department that in pursuance to the directions issued by the High Court in the said Writ Petition the licence has already been issued. However, the same is made subject to the decision of the appeal. 3. We have examined the memo of petition to examine a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 8-6-1987 however, held that the respondent was not in continuous employment with particular gold dealer for a period of five years as required under proviso (f) to Clause (f) to Rule 2 of the Rules and hence he was not entitled to exemption from operation of Clause (f) to Rule 2. He applied the ratio of the CEGAT South Regional Bench decision in Uttamchand Jain s case. He also held that there was no proportionate increase in the turn-over and hence rejected the application for grant of licence. In the appeal preferred against the said order, the Collector (Appeals) allowed the appeal holding that the turn-over was enough so as to justify grant of licence and ordered granting of licence. Henceforward to the decision of CEGAT West ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o notification issued under Section 27 (6A) of the Customs Act. He also submitted that the ratio laid down in the case of Uttamchand Jain is not a correct one and the same should not be relied upon. 8. We have heard both the sides and have perused the documents. 9. So far as the order of Collector (Appeals) is concerned, it does not appear to be suffering from any infirmity so as to call for any interference. He has duly applied the turn-over criteria, and has correctly applied the ratio of the decision of this Bench in Shri Shantilal Jain case. The submission is made by Shri Arya, that the provision of Rule 2 of the Licensing of Dealers Rules are mandatory in nature. For the same reasons as mentioned by the Collector (Appeals) in his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular No. 27/78) dated 28-9-1978. The relevant para of the circular is extracted below: The matter has been re-examined in the light of the changed circumstances. The matters mentioned in Rule 2 of the Gold Control (Licensing of Dealers) Rules are not conditions of a mandatory nature governing the grant of a Dealer s licences. It may not be necessary that in each and every case all criteria mentioned therein should be fully satisfied. These rules give discretion to the licensing authority. From the above, it is evident that the licensing authority cannot overlook the provisions contained in Rule 2 of the Gold Control (Licensing of Dealers) Rules but it is not necessary that in each and every case, all criteria mentioned therein should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the said Rules. In view of this position the application does not deserve outright rejection. The other circumstances may have to be considered. Once such consideration which prevailed on the licensing authority to reject the appellant s request was the ground that the annual turn-over figures did not warrant any further increase in the number of gold dealers. There is no discussion on this aspect as to how he has arrived at this conclusion. On the contrary the Collector (Appeals) in his order, has reproduced the turn-over showing the definite increase in the year 1985 as compared to 1984. Hence we are unable to appreciate as to how in the context of the figures given by the Collector (Appeals) in his order and in the absence of any di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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