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TMI Blog1985 (12) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... J. Chandulal Co. was in their application in form G.S. 6 for the renewal of the Gold Delaer s Licence and in particular in the printed declaration under Sl. No. 8 of the form which was to the effect that the appellant did not have other interest in the business of refining, converting, manufacturing, making, purchase or sale of gold or articles including ornaments. On the foregoing basis, the Collector took action for cancelling the licence of the appellant under Section 50 of the Gold (Control) Act. The Advocate stated that the appellant was a partner of the firm of M/s. J. Chandulal Co. right from the year 1963 when the gold control was introduced upto 15-11-1982. M/s. J. Chandulal Co. partnership firm holding the Gold Dealer s Licence and the appellant wanted to separate from it to start an independent business of dealing in gold. Accordingly, he gave notice to the remaining partners of the firm in his letter dated 22-9-1982 to the effect that he wanted to retire from the firm with effect from Aso Vadi Amawasya S.Y. 2038 which was on 15-11-1982. On this basis, M/s. J. Chandulal Co. filed an application dated 12-10-1982 addressed to the Collector of Customs (Prev.), Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application. The Advocate argued that this would not make Shri Soneji a partner of a firm as on the date of application. He cited the Trade Notice No. 4/79 dated 1-8-1979 of Baroda Collectorate (Cencus Manual of Gold Control-Second Edition P.II/99) in support of the practice of a former partner signing the application for the renewal of the licence for facilitating the same. In addition, the Advocate drew our attention to letters dated 21-7-1983 and 30-5-1983 from the Deputy Collector of Customs (Prev.), Gold Control, Bombay to Shri Naresh B. Jagad, C/o. Deepal Agencies, Bombay and M/s. J. Chandulal Co. confirming that Shri Soneji had retired from M/s. J. Chandulal Co. with effect from 15-11-1982. The Advocate stated that these confirmed the acceptance of the retirement of Shri Soneji by the department as on that date. He also drew our attention to the certificate from the Registrar of Firms dated 30-7-1983 which also attested the fact that the appellant retired from the firm on 15-11-1982. M/s. J. Chandulal Co. had also informed the Superintendent of Customs (Prev.), Gold Control Bombay in their letter dated 29-11-1982 that the formalities relating to retirement of Shri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignature in the renewal application dated 29-11-1982 of M/s. J. Chandulal Co. for the renewal of the Gold Dealer s licence. This is also subsequently explained by the appellant and the authority has been cited in support of the same. There is no controversion of this fact by the department. Considering these facts, we find that the Collector s order is not legal and proper. We set aside the same and allow the appeal with the direction that the Gold Dealer s Licence of the appellant should be continued. 4. The foregoing detailed order is issued in confirmation to our oral order announced in the open court. 5. [Per : K. Gopal Hegde]. - The facts necessary for the disposal of this appeal as well as the contentions urged on behalf of the appellant by the learned Advocate, Shri Shah and Shri Senthivel, learned Senior Departmental Representative, have been set out in the order of my brother, Shri Dilipsinhji. Therefore, I consider it unnecessary to set out the facts or the contentions urged on both the sides. 6. The Collector of Customs (P) had ordered cancellation of the Gold Dealer s Licence for the following reasons: (1) The appellant Shri Harshadray Shivji Soneji had applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handulal Co. 7. The reading of the order of the learned Collector indicates that the licence was cancelled because the appellant had suppressed material particulars in his application dated 23-11-1982 for Gold Dealer s licence. Section 50(1) of the Gold (Control) Act, 1968 empowers the Administrator to cancel the Gold Dealer s licence if he is satisfied that the holder of any licence has made incorrect or false statement in his application for licence in respect of material particulars . Therefore, the question that arises for consideration is whether the appellant in his application dated 23-11-1982 for Gold Dealer s licence had made incorrect or false statement. The false or incorrect statement said to have been made by the appellant was that he had retired from the firm of M/s. J. Chandulal Co. and that he has no other interest in any other business relating to the refining, converting, manufacturing, making, purchase or sale of gold or articles made of gold including ornaments. The basis for the learned Collector to hold that the appellant had made incorrect and false statement in his application dated 23-11-1982 was that to the renewal application dated 29-11-1982 made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have regard for the issue of Gold Dealer s licence are set out in Rule 2 of Gold (Control) Licensing of Dealers, Rules 1969. Having regard to the statutory provisions the Administrator before issuing the Gold Dealer s licence was required to make an enquiry. The Collector s finding was that the appellant continued to be the partner of the firm, M/s. J. Chandulal Co. even after his application dated 23-11-1982 and that he had suppressed the fact of his continuing as a partner in the firm, M/s. J. Chandulal Co. As early as on 12-10-1982 the firm M/s. J. Chandulal Co. had informed the Collector of Customs (P) as to the intention of the appellant to retire from the partnership with effect from 15-11-1982 and they had requested for granting the approval to the appellant for issue of a fresh licence in his individual capacity. On 15-11-1982 the Superintendent had informed M/s. J. Chandulal Co. that the Collector had allowed the present appellant to retire from the partnership firm. In pursuance of this permission the appellant by his letter dated 18-11-1982 informed the other partners that he ceased to be the partner with effect from 16-11-1982 and requested them to settle accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce which was granted to him in pursuance of his application dated 23-11-1982 should not be cancelled and subsequently the learned Collector also cancelled the licence. It is significant to note that the gold dealers licence was issued to the appellant on 2-5-1983 much after 29-11-1982. Even at the time of issue of a licence the department did not consider whether the licence should be issued to him. From the issue of licence to the appellant on 2-5-1983 it could be said that the licensing authority was satisfied that the appellant did not have any interest in the firm, M/s. Chandulal Co. As pointed out earlier the licensing authority was required to make an enquiry before issue of licence. If M/s. J.Chandulal Co. had not produced fresh partnership deed and the appellant had been shown as one of the partners the licensing authority could not or should not have issued the licence to the appellant on 2-5-1983. The licensing authority apparently was satisfied that the appellant ceased to be the partner of the firm M/s. J. Chandulal Co. when it issued the licence to the appellant on 2-5-1983. The Collector committed an error in holding that there was material suppression of facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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