Customs, Excise and Gold Tribunal - Delhi
Rameshwar Prasad Shishir Kumar vs Collector Of Central Excise on 18 March, 1987
Equivalent citations: 1987(11)ECR805(TRI.-DELHI), 1987(29)ELT464(TRI-DEL)
ORDER P.C. Jain, Member (T)
1. This is an appeal against rejection of application for a gold dealers licence made by the appellant in December 1982. Application was rejected by the lower authorities on the ground that there was no need for increasing the number of licenced dealers in the town of Kashipur where the appellant resides and wanted to set up a gold dealers business. Acting on the guidelines laid down in Rule 2(1) of the Gold Control (Licensing of Dealers) Rules, 1969, the original authority has stated that the turnover in the preceding three years namely", 1980, 1981 and 1982 in the town of Kashipur had been as follows :-
Year Turnover 1980 2234.874 gms. for 3 gold dealers. 1981 1889.305 gms. for 2 gold dealers. 1982 2765.509 gms. for 3 gold dealers.
Original authority on the basis of the above data has come to the conclusion that the turnover in 1982 was 921.836 gms. per dealer per year as against the turnover of 944.652 gms. per dealer per year in 1981. In this view of things the original authority considered that there was no scope for increasing the number of dealers.
It has also been found by the lower authorities that the appellant did not have sufficient experience in dealing in gold despite a certificate from the Sarafa Committee of Kashipur that he has been assisting his father in the sale and purchase of gold ornaments as a member of HUF business.
2. Appellant, on the other hand, has stated that the figures produced in the order-in-original as extracted above, clearly show an increasing trend of turnover. It is further borne out by. the fact that another firm M/s. Ashok Jewellers, Kashipur, have been granted a gold dealers licence No. 1/Gold/RMP/86, dated 12-1-1986. The appellant himself has been granted a certificate for recognition as a goldsmith No. 2-GSC/KPR/84, dated 9-4-1984. It has been submitted that in view of these two documents the major argument of the lower authorities that there was no scope for further issue of gold dealers licences in Kashipur is invalid. The learned advocate in support of this argument has relied upon a judgement of Kerala High Court in the case of P.I. Kuriakose v. Asstt. Collector of Central Excise, Trivandrum and Ors. (Reported in CENCUS Manual of Gold Control-2nd edition by D.N. Kohli and K.R. Mehta at page 426). It has been held in the said judgement that "in view of the admitted fact that on a subsequent application made by the 4th respondent a licence has been issued to him for carrying on business as a gold dealer at Ranni, there is no justification at all for denying such a licence to the petitioner. It has been argued by the consultant for the appellant that the facts in the instant case before the Tribunal are more or less identical to the facts of the case before the High Court of Kerala. Ratio of the said judgement, therefore, strictly covers the instant case.
3. On the question of lack of experience of the appellant, learned consultant has drawn attention to para 5 on page 2 of the order-in-original wherein it has been clearly stated that before the promulgation of Defence of India Rules, 1963, i.e. before the imposition of Gold Control Rules, his father was having the business of gold and silver bullion and the ornaments made therefrom. However, after the Gold Control Ordinance came into existence some time in 1963 they did not deal with the gold or gold ornaments. Lack of experience, therefore, cannot be attributed to the appellant because gold dealers business is the ancesteral business of the appellant. This is duly supported by the certificate from the Sarrafa Committee of Kashipur. The fact of experience in making and manufacturing of gold ornaments is also supported by the fact that the appellant has been granted a certificate for goldsmith in 1984 as stated above.
4. Learned SDR Smt. Nisha Chaturvedi, on the other hand, pointed out, on the basis of the comments received from the respondent, that the issue of licence to another firm namely, M/s. Ashok Jewellers is not relevant to the issue because the data considered for issuing licence to that firm was for a period different from the period for which data had to be considered, in accordance with law, in the case of the appellant. On the basis of the available data for the 3 years preceding the date of application the appellant had been rightly refused the gold dealers licence.
5. We have carefully considered the pleas advanced on both sides. We observe that on the basis of data extracted above from the order-in-original it cannot by any means be inferred as has been inferred by the original authority that there was decreasing trend in turnover of gold in respect of the existing gold dealers. The data clearly speaks that in 1980 the turnover was 2234.874 gms. whereas the turnover in 1982 increased to 2765.509 gms. There is thus clearly an increasing trend of turnover. On the basis of the evidence on record, we also cannot accept that the appellant lacks experience in dealing in gold ornaments as well as making and manufacturing of gold ornaments. Case of the appellant is further strengthened by the fact that another firm M/s. Ashok Jewellers has been granted a licence for dealing in gold. Ratio of the judgement of Kerala High Court relied upon by the learned consultant is apt in the facts and circumstances of this case. In the absence of any contrary judgement of any other High Court having been pointed out by the department we have to follow the ratio of the judgement in accordance with the practice of this Tribunal.
In view of the foregoing discussion, we allow the appeal and direct the lower authorities to issue a gold dealers licence to the appellant forthwith.