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TMI Blog1989 (1) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... mandamus directing the Additional Collector of Central Excise, Madurai to dispose of their application, dated 18-11-1985 for renewal of their licence under the Gold Control Act, hereinafter referred to as the Act, without reference to his order dated 16-10-1987, made in C. No. XVII/7/59 Order No. 11/87. W.P. 2012 of 1988 was to quash the aforesaid order of the Additional Collector of Central Excise, Kathiresan, the petitioner in W.P. 2012 of 1988 was the holder of licence No. AVII/77, dated 3-9-1977, issued to him by the Assistant Collector of Central Excise, Madurai. The licence enabled the holder to carry on the business of making, manufacturing, preparing, repairing, polishing, buying, selling, supplying, distributing, mE.L.T.ing, proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise. However, as a parallel proceedings W.P. 11510 of 1987 was filed before this Court, that was dismissed by the learned Single Judge of this Court holding that inasmuch as the remedy of appeal had been availed of the writ petition was not maintainable. The appeal to the Collector of Central Excise was dismissed on 29-12-1987. Against this order, the matter was taken up to the Tribunal. Before the Tribunal, leave was sought to withdraw the appeal on the ground that the impugned order was non est and without jurisdiction. The Tribunal granted the required permission stating :- "Without expressing any opinion on the merits of the issue we accord permission to the appellant to withdraw the appeal and the appeal is accordingly dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, a licence came to be issued in the name of four individuals albeit the fact that in Column 7 of the Schedule to the application form, the names of the partners were given as partners of Sujatha Jewellers, the licensing authority cannot turn round and say that the licence issued in the name of four individuals was meant to be that of the firm. If, really, therefore, the four individuals are the licensees as has been found by the learned Single Judge, the issue of show cause notice to the firm has no legal consequence whatever. Thus the findings of the learned Single Judge cannot be assailed at all. 6. We are more than surprised to see that the licensing authority has not even cared to properly scrutinise the application for renewal. Wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the applicants were only the four individuals. But, without noting these partners, a show cause notice comes to be issued on 31-3-1987 as follows :- "M/s. Sujatha Jewellers have applied for renewal of their GDL No. 17/77 for three years 1986-88 enclosing therewith a G.S. application dated 18-11-1985, Original GDL, proforma and a paid up challan dated 24-10-1985 towards renewal fee." This is the reason why we remarked even at the beginning of the judgment after the narration of the fact that there has not been a proper scrutiny by the licensing authority concerned. Nowhere did the Sujatha Jewellers apply for renewal. Nor did at any relevant point of time the licensee stand in the name of Sujatha Jewellers. Wherefrom this information w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dious expression of the names or individuals who for the time being are its partners. A firm is entitled to file a suit either in its own name or in the names of its partners. Under Order 30 Rule 1, Civil Procedure Code, it is the partnership firm alone which is entitled to file a suit in firm name." Therefore, this well laid distinction cannot be obliterated as is sought to be done now. Under these circumstances, we are in entire agreement with the findings of the learned Single Judge who held that under Section 2(h) of the Act, 'dealer' includes a Hindu undivided family, a local authority, company, society registered under the Societies Registration Act, a Co-operative Society, club, firm or other association of persons. Section 52 also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the learned Single Judge, that had come to be stayed because the licensing authority had taken up the matter in appeal in W.A. 740 of 1988. Therefore, virtually the business was not run from that date. Under these circumstances, to permit the respondents to run the business will only complicate the issue. To us the proper and just course appears to be to give a direction to dispose of the renewal application in accordance with the following time Schedule. 8. The application dated 18th November, 1985 received for the years 1986, 1987 and 1988, will be taken up for consideration. Should the licensing authority think that a show cause notice is necessary about which we say nothing, such a show cause notice shall be issued on or before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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