ORDER
S. Kalyanam, Member (J)
1. The stay petition is for suspending the operation of the impugned order appealed against pending disposal of the appeal. Since we propose to dispose of the appeal itself today, the petition is dismissed.
A. No. G/50/88/MAS. The appeal is directed against the order of the Collector of Central Excise (Appeals), Madras, dated 10.12.1987 confirming the order of the Assistant Collector of Central Excise, Trivandrum Division, dated 13.11.1987 extending the suspension of the appellant’s licence in terms of Section 50(1) of the Gold (Control) Act, 1968, the ‘Act’ for short.
2. The Central Excise Officers attached to the Headquarters Preventive, Cochin, seized gold ornaments weighing 80831300 gms. and one gold bar of foreign origin weighing 100 gms. totally valued at Rs. 24,54,990 on 30.10.1987 kept concealed in the licensed premises of the appellant at Kayamkulam, Kerala State. On 4.11.1987 the Assistant Collector of Central Excise, Trivandrum, on a reasonable belief that the appellant has contravened the provisions of the Act suspended the licence of the appellant in exercise of his power under Section 50(1) of the Act. Since in terms of the proviso to Section 50(1) of the Act the licence cannot be suspended for a period exceeding 10 days unless the holder thereof has been given a reasonable opportunity of showing cause against the proposed action. The Assistant Collector also called upon the appellant in his suspension order dated 4.11.1987 referred to above to show cause against the continuance of the suspension of the licence pending enquiry. Subsequently, after affording the appellant an opportunity of being heard, the Assistant Collector by his order dated 13.11.1987 extended the suspension of the appellant’s licence under Sub-section 1 of Section 50 of the Act “until, further orders vacating this order, are issued”. The appeal against the same by the appellant was rejected by the Collector of Central Excise (Appeals), Madras, under the impugned order out of which the present appeal arises.
3. Shri Ramachandran, the learned counsel for the appellant, submitted that Section 50(1) of the Act confers power, jurisdiction and authority on an Assistant Collector to order interim suspension of a Gold Dealers licence only pending enquiry or trial. Enquiry can be said to be pending only after the issuance of a show cause notice under the Act. Before the issuance of a show cause notice, the proceedings would be only in the stage of investigation. Completion of investigation should culminate in the issuance of a show cause notice and it is only from that moment an enquiry can be said to be pending. It was urged that in the present case the show cause notice was issued on 17.11.1987 by the Superintendent of Central Excise calling upon the appellant to show cause to the Collector of Central Excise, Cochin, against the various contraventions alleged therein. The learned counsel, therefore, submitted that the order of interim suspension followed by a further order of continuance of the suspension before the issuance of the show cause notice is without jurisdiction. The learned counsel further urged that the order of the Assistant Collector extending the suspension “until further orders vacating this order, are issued” is also legally untenable, since the Assistant Collector has no power or authority to keep the suspension alive after the conclusion of an enquiry. Finally, the learned counsel submitted that when a superior authority like the Collector is already in seisin of the issue, it is but proper that he should apply his mind into the facts of this case and go into the question as to whether either interim suspension or continuance of the suspension of the appellant’s licence is called for in terms of Section 50(1) of the Act.
4. Shri Bhatia, the learned Senior D.R., contended that the Assistant Collector is a competent authority to order suspension without notice for a period of 10 days and order further continuance of the suspension pending enquiry or trial after issue of a show cause notice under Section 50(1) of the Act. The learned Senior D.R. urged that the Assistant Collector is an authority competent to adjudicate and exercise the powers in terms of Section 50(1) of the Act and also placed reliance on the Notification of Government of India No. 4304 dated 2.12.1968 delegating the power on the Assistant Collector to suspend or cancel a licence or a certificate under Sections 50(1) and 5O(1A) of the Act by the Administrator. The learned Senior D.R. further urged that issuance of a show cause notice and adjudication proceedings have nothing to do with the exercise of a power by the Assistant Collector in ordering interim suspension or continuance of suspension under Section 50(1) of the Act. The learned Senior D.R. further submitted that there is no warrant in law for the contention that enquiry can be said to commence only after the issue of a show cause notice. Having regard to the scheme of the Act, the learned Senior D.R. urged, the Assistant Collector being a competent authority to grant licence has also been invested with powers to order suspension and cancellation of the licence under the relevant provisions of the Act.
5. We have carefully considered the submissions made before us. In the present case the fact remains that a show cause notice calling upon the appellant to show cause to the Collector of Central Excise against the alleged acts of contravention has been issued on 17.11.1987 and the Collector of Central Excise, Cochin, is in seisin of the whole issue as an adjudicating authority. When a superior officer in the rank of a Collector is holding adjudication into the matter, it would look rather incongruous that a subordinate authority like an Assistant Collector to intervene and superimpose an order of interim suspension or extension of suspension of a Dealer’s licence pending enquiry. We would like to make it clear that we are not pronouncing upon the competence, power or jurisdiction of the Assistant Collector to order interim suspension or the continuance there- of in exercise of the power under Section 50(1) of the Act. In the peculiar facts and circumstances of this case, when admittedly adjudication proceedings are now pending before the Collector of Central Excise, Cochin, as on date, we are inclined to think that it would be more proper for the learned Collector to apply his mind into the facts and circumstances of this case and decide the question as to whether suspension of the appellant’s licence pending enquiry before him is called for under the Act. We would also like to note that at the time when the Assistant Collector passed the order, the show cause notice had not been issued and since the show cause notice was issued only on 17.11.1987 we take note of the subsequent events and circumstances in expressing our view that the Collector being an authority now sitting in adjudication over the matter he could consider the question in regard to suspension of the licence. We have had occasions in some of our earlier orders under the Act to refer to the instructions of the Ministry’s letter F. No. 132/6/85-G.C, dated 27.2.1987 whereunder the Government have issued clarifications in regard to renewal, suspension and cancellation of Gold Dealer’s licence, etc. The instructions of the Ministry call for caution and circumspection in regard to suspension and cancellation of licences under Section 50(1) of the Act and keeping those instructions in mind in the facts and circumstances of this case, we feel that in the interests of justice the Collector of Central Excise, who is now the adjudicating authority, can consider the question relating to suspension of the appellant’s licence.
6. Under Section 50(1A) of the Act, if on an enquiry the Administrator is satisfied that a licensee has contravened the provisions of this Act, he may cancel his licence provided that no licence shall be cancelled unless the holder thereof has been given a reasonable opportunity of showing cause against the proposed action. Therefore, it follows that even if the adjudicating authority were to give a finding against the appellant in regard to contraventions under the Act for cancellation of the licence in terms of Section 50(1A) of the Act, the appellant will have to be given a show cause notice afresh and be heard. Therefore, we feel that the Collector himself may go into the question with reference to the advisability or otherwise of ordering suspension of the licence pending enquiry before him.
7. We, therefore, set aside the impugned order without expressing any opinion on the merit of the issue. We make it clear that it is certainly open to the Collector of Central Excise, who is now in seisin of the issue as adjudicating authority, to exercise the powers as per law under Section 50(1) of the Gold (Control) Act, 1968. The appeal is accordingly disposed of .