TMI Blog1988 (7) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... short of the minimum prescribed under Rule 3 (ee) and further that the appellants has been proved to have contravened the provisions of Section 8 of the Gold (Control) Act in the adjudication order dated 1-7-1985 and also contravention of the provision of the Customs Act in the adjudication order of 29-12-1982 and thereby there was no fulfillment of the provision of Rule 3(f). 3. The appellant sent a detailed reply contending that the short fall was only 2.73 gms and this was due to certain cases filed against him during the years 1982-83 and due to communal disturbances during the years 1984-85. He, therefore, prayed that the short fall may be condoned. As regards the contravention of the provisions of the Gold (Control) Act and Customs Act, the appellant contended that he had preferred appeals against the orders and the same are pending consideration. He also submitted that both the proceedings were in respect of the one single transaction and therefore the renewal should not be denied and cancellation should not be ordered for single contravention and in that connection he also placed reliance on the circular instructions issued by the Government of India. 4. The Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant was not a wholesale dealer and the applicant had no opportunity to establish that he is a wholesale dealers, and therefore, the Collector s order is vitiated when he held that the appellant was not a wholesale dealer. Shri Mehta contended that the learned Collector had gone beyond the show cause notice. The fourth submission of Shri Mehta was that the circular instructions issued by the Government was binding on the Administrator and, therefore, the Collector was unjustified in ignoring the Government circular and cancelling the licence for a single act of contravention that too when the adjudication order has not become final. In that the two appeals filed by the appellant were pending before the Tribunal. In view of the pendency of the two appeals Shri Mehta urged that the learned Collector ought not to have passed the impugned order. Finally Shri Mehta submitted that as per the circular instructions of the Government dated 7-10-1969 that the provisions for cancellation should not be lightly invoked and it would be unfair to refuse renewal of a licence for mere technical or petty contravention. Shri Mehta, therefore, prayed that the Collector s order may be set aside. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence under the Gold (Control) Act and had also set aside the order of several other appellants for the offence under the Customs Act. If the appellant had deposited Rs. 3.00 lacs ordered to be deposited, the appellant could have succeeded in the appeal since he stand on the same footing as the other appellants whose appeals were allowed by the Tribunal. 10. We have considered the submissions made on both the sides and perused the available records. 11. The following facts were not disputed. 12. The appellant was granted a gold dealers licence in the year 1976. The said licence was being renewed from time to time upto the year 1985. The appellant made an application for renewal of his gold dealers licence within the prescribed period for the year ending 31-12-1988. 13. The two grounds were urged in the show cause notices for rejection of renewal and cancellation of the licence. During the 36 months prior to 31-12-1985 the appellant s turnover were, November 82 to October 83 183.776 gms. November 83 to October 84 1378.742 gms. November 84 to October 85 127.624 gms. The average per month fall short of 50 gms. The secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears to have been made. The Collector could have also verified whether the disturbance did affect the business of the gold dealers during the year 1984-85. All that he was required to do was to verify the returns of the turnover of licenced gold dealers during the relevant period. Even this simple exercise was not done by the Collector. The Collector s finding is wholly subjective and not at all objective. We, therefore, set aside that part of his finding. 16. As stated earlier the other ground on which the Collector ordered rejection of renewal and cancellation of the licence was that the appellant had been penalised for contravention of the Customs Act as well as the Gold (Control) Act. Before the Collector the appellant had pleaded that since he had preferred appeal against the orders of penalties, the renewal should not be refused. The appellant had also placed reliance on the Government s circular governing the renewal and cancellation. The Collector, however, rejected this plea holding that the Government circular is only for the guidance of the departmental people and the trade cannot take advantage of it. He also held that the Collector is not required to wait till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntravention as to whether it is trivial, technical or venial in nature is a relevant factor and an important circumstance to be taken note of. 20. Similar view was taken by the said Regional Bench in the case of Jyoti Jewellery v. Collector of Central Excise, Cochin [reported in 1988 (34) E.L.T. 682 (Tri.)]. 21. This Regional Bench in the case of Collector of Customs (Preventive) Bombay v. M/s. Mancharlal Ghanshyamdas Jewellers in Appeal No. G/98/87-Bom., considered in detail as to the circumstances under which the renewal of gold dealers licence could be denied as well as the circumstances under which licence could be cancelled. It also considered as to whether the Administrator should wait till the Final disposal of the proceedings for rejecting renewal or for cancellation of the licence. This Bench after referring to the various circular instructions of the Government of India and also the recommendations of the Working Group on Gold Control Machinery observed : We are entirely in agreement with the various circulars issued by the Govt. of India relating to the cancellation of a Gold Dealer s Licence. The factors which are applicable for cancellation of licence should eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appropriate case renewal may be made from year to year. Again if during the pendency of the renewal application the licensees had been convicted by a Criminal Court, action could be initiated for cancellation of the licence itself. In view of the above, effective remedies available to the Deptt. no prejudice would be cause if the adjudicating authority were to wait till the final outcome of the appeal. In more than one circular of the Govt. the Govt. have also fe.l.t. that necessity to wait till the final outcome of the appeal before taking action for cancellation of licence." 25. As regards the binding, the nature of the administrative instructions given by the Govt. of India, this Bench observed : Though the adjudicating authority who is to act as a quasi-judicial authority is not bound by the administrative instruction he will not be committing any error of law or impropriety if he gives due consideration to the administrative instructions particularly the instructions given by the Govt. of India which has general control over the Administrator in the discharge of his functions. Under sub-section 3 of Section 4 of the Act the Administrator is required to discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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