ORDER
S. Kalyanam, Member (J)
1. The stay application is one seeking interim suspension of the operation of the impugned order of the Collector of Central Excise (Apeals), Madras, dated 11-9-1987 appealed against.
2. Since we propose to dispose of the appeal itself today as the issue lies in a short compass, the petition is rejected.
G/Appeal No. 343/87.
The appeal is directed against the order of the Collector of Central Excise (Appeals), Madras, dated 11-9-1987 confirming the order of the Deputy Collector of Central Excise, Bangalore, dated 18-6-1987 and rejecting the appellant’s application for renewal of the Gold Dealers Licence for the years 1986-1988.
2A. The appellant was a licensed gold dealer having a licence under the name and style of M/s. Sugan Jewellers at Robertsonpet, Kolar Gold Fields, and applied for renewal of his gold dealers licence on 3-12-1985 for three years ending 31-12-1988. The application was rejected by the original authority on the ground that the appellant was found to have contravened the provisions of the Gold (Control) Act in 1983 in respect of non-accountal of 33 gms. of primary gold and 388 gms. of new gold ornaments. The appellate authority under the impugned order confirmed the findings of the original authority and rejected the appellant’s application for renewal out of which the present appeal arises.
3. Shri Suganchand Jain, the learned counsel for the appellant, submits that the alleged contravention is technical in nature and was in the year 1983 and subsequent to 1983 till date the appellant has been doing business without any irregularity whatever. The learned counsel further urged that even in respect of the alleged commission of offence the Additional Collector of Central Excise, Bangalore, imposed only a penalty of Rs.2,000 and permitted the appellant an option to ¦ redeem the unaccounted gold and ornaments on payment of a fine of Rs.6,000/-. It was urged that the quantum of fine and penalty would clearly indicate that the nature of the offence was not serious. The learned counsel further submitted that there was no prosecution against the appellant and this would also indicate that the Department did not think that the nature of contravention was serious enough. Finally, the learned counsel referred to the Bench ruling of the Tribunal in the case of K.P. Raman v. Collector of Central Excise, Coimbatore, dated 14th August, 1987 in Order No. 568/87 and pressed into service the ratio thereunder.
4. Shri Vadivelu, the learned D.R., urged that renewal applications will have to be viewed strictly and in terms of Rule 3 of the Gold Control (Licensing of Dealers) Rules, 1969 a dealer shall be qualified for the renewal of licence held by him only if he fulfilled the various conditions enumerated thereunder and under Clause (f) of Rule 3 the condition is that the applicant should not have contravened any provision of the Gold (Control) Act, 1968. The learned D.R. urged that there is no provision under law to relax the condition and further submitted that the ruling of the Tribunal was with reference to a case of lesser gravity in nature than the present one.
5. We have carefully considered the submissions made before us. The appellant’s application for renewal of gold dealer licence for the three years 1986-1988 was rejected by the original authority on 18-6-1987on the ground that the appellant had contravened the provisions of law in the year 1983. We find that subsequent to 1983 till date the appellant has been doing the business by reason of the fact that the operation of the order of cancellation by the original authority referred to supra was suspended by the Collector of Central Excise (Appeals) during the pendency of the appeal before him. Therefore, the fact remains that subsequent to 1983 for the past four years the appellant has been admittedly doing the business as a dealer. We have carefully considered the scope and ambit of Rule 3 of the Gold Control (Licensing of Dealers) Rules, 1969 with particular reference to Rule 3(f), which mentions about the contravention by the applicant of the provisions of the Gold (Control) Act, 1968. In our opinion an applicant for renewal of licence cannot be denied renewal merely on the ground that there has been a contravention on his part of the provisions of the Act sometime in the past. The nature of contravention as to whether it is trivial, technical or venial in nature is a relevant factor and an important circumstance to be taken note of. In the present case the alleged contravention of the appellant was in the year 1983 and that was one of non-accountal of 33 gms. of primary gold and 388 gms. of new gold ornaments of 22 ct. purity. Having regard to the purity of the ornaments and the nature of the offence viz. non-accountal we do not think that the same could be characterised as a very serious offence. We would like to take note of the fact that the Tribunal in the case of M. Sadananda Pai v. Collector of Central Excise, Cochin, reported in 1986 (26) E.L.T. 602, has had occasion to consider a case of non-renewal on grounds of contravention by the applicant and held that non-declaration by a dealer of certain ornaments found in his residential premises could not be viewed as a very serious offence so as to disentitle him from the grant of a renewal of the licence. In the decision of the Bench in the case of K.P. Raman cited before us by the learned counsel a reference has been made to the above ruling and also to a decision of the Collector of Central Excise (Appeals), Madras, dated 7-7-1987 in the case of Kalpana Jewellery of Coimbatore in his order A.No.99/87. In that case the renewal of licence had not been accepted by the original authority and on appeal against the said order the Collector (Appeals) has held that the offence for which the dealer was penalised being of a technical nature, there was no good ground for rejection of the renewal application. The Kalpana Jewellery case related to an offence of non-accountal of 220 gms. of new ornaments of 22 ct. purity found in the business premises of the appellant in that case and the non-accountal was also admitted by the appellant in his statement immediately after seizure. In the present case admittedly the Department did not launch a prosecution against the appellant and presumably because in the opinion of the Department the nature of contravention alleged against the appellant in respect of non-accountal in the year 1983 cannot be considered to be a serious one. We also find that in respect of the ruling rendered by the Collector of Central Excise (Appeals), Madras, in Kalpana Jewellery referred to above the Department did not challenge the correctness of the same by way of an appeal before the Tribunal as per law. We also take note of the fact that in the present case the appellant is in business right through till now and the contravention was only in the year 1983. As we have already stated, the Department also did not think it a serious offence or contravention to launch a prosecution against the appellant. Taking all these factors into consideration and also keeping in mind the ratio of the Bench rulings referred to above and also bearing in mind the fact that in a similar case of contravention in regard to Kalpana Jewellery as late as on 7th 3uly, 1987 the Collector of Central Excise (Appeals), Madras, has passed an order directing renewal of gold dealers licence, which has not been challenged by the Department till date, we are inclined to hold that in the facts and circumstances of this case the contravention of the appellant in the year 1983 could be treated as not a serious one so as to warrant non-renewal of Licence under Rule 3(f) of the Gold Control (Licensing of Dealers) Rules, 1969. We would like to make it clear that there is no hard and fast Rule in regard to renewal of licence and each case will have to be considered on its own facts and circumstances and the only relevant factor in law would be as to whether the contravention alleged is technical or venial in nature or a serious one. In the result we set aside the impugned order appealed against and allow the appeal.