TMI Blog2013 (2) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... jection within certain point of time, the registration is deemed to have been granted. In this case application was kept pending for some time and after expiry of the stipulated time the order was passed and unilaterally the registration was granted under the category of clearing and forwarding agent for which no application was made - Application was made for registration under the category of business auxiliary, and no application was made for clearing and forwarding agent. Therefore, either the application ought to have been allowed or ought to have been rejected on its own merit without making any third party’s case. Order set aside. Department was directed to treat the respondent-company’s registration as the provisional registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication by fiction of law, they are deemed to have been registered under the heading business auxiliary. 4. Taking the aforesaid ground, the respondent-company filed a writ petition for appropriate order to bind the respondent on account of deemed registration. It appears from the record that the Commissioner by order dated 3rd September, 2007 issued a registration under the category of clearing and forwarding agent for which never applied for. Challenging the aforesaid order, the said writ petition was filed and the Hon ble Justice Aniruddha Bose was pleased to pass the order directing the respondent authority to rehear the matter and decide afresh and by the said order it was made clear that the petitioner should go on carrying on bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid order, the writ petition was filed by the respondent-company on which the impugned judgment and/or order was passed. 8. It appears that the learned Trial Judge allowed the writ petition substantially and set aside the order and also held that the respondent-company was not carrying on business of clearing and forwarding agent, rather carrying on business of business auxiliary. 9. The present appeal has been filed by the department challenging the aforesaid order of the learned Trial Judge. 10. It is contended by Mr. Maity, learned advocate, appearing on behalf of the appellant that the observation of the learned Trial Judge with regard to the subject matter of the Tribunal was not called for. He submits that at all mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was granted under the category of clearing and forwarding agent for which no application was made. 12. While considering the contentions of both the parties, we are in agreement with the submission of Mr. Poddar that the application was made for registration under the category of business auxiliary, and no application was made for clearing and forwarding agent. Therefore, either the application ought to have been allowed or ought to have been rejected on its own merit without making any third party s case. It may be the contention of the department that the respondent-company has been carrying on business as clearing and forwarding agent, but it is the precise issue before the learned Tribunal, and we fail to understand how the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for the time being. 14. We direct the Tribunal to hear out the matter within a period of three months from the date of communication of this order without fail, and after the decision is rendered, the department will take action in accordance with law. We clarify if before the learned Tribunal Mr. Poddar s client succeeds to persuade that his client at all material time had and still has been carrying on business of business auxiliary, the application for registration shall be considered on its own merit. If Mr. Poddar s client fails, our order treating his client s registration as provisional shall not have any effect. 15. We also direct the learned Tribunal not to take note of the findings and/or decisions of the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
