ORDER
K.S. Dilipsinhji, Member (T)
1. Mangalore Jewellery Works, Bombay filed a Revision Application dated 23.12.1981 to the Government of India under old Section 82 of the Gold (Control) Act, 1968 and this has been transferred to the Tribunal in terms of Section 82K ibid and is to be treated as an appeal to the Tribunal. The appeal is against the order No. 89/1981 issued under F.No. 111/6/81-GC.I, dated 29.10.1981 of the Gold Control Administrator whereunder he rejected the first appeal of M/s. Mangalore Jewellery Works as time-barred under Section 80(1) of the Act. This fact is not disputed by the appellants. When this appeal was called out for hearing on 20.3.1987 the learned advocate Shri Madhu M. Patel on behalf of the appellants argued that the Tribunal should go into the merits of the appeal and not on the question of the correctness of the Gold Control Administrator’s order rejecting the first appeal as time-barred. Since the advocate had not come prepared to argue the proposition as canvassed by him that the Tribunal should go into the merits ignoring the time-bar, he sought an adjournment which was granted to enable him to submit necessary authorities.
2. The appeal was called out for hearing again on 16.4.1987. However, Shri Tushar Shah appeared on behalf of the appellants. Instead of citing the authorities for which an adjournment was sought and granted, Shri T. Shah sought permission to file an application requesting for calling the records of the first appeal from the Gold Control Administrator and hearing the present appeal by holding that the appeal dated 26.12.1980 addressed to the Gold Control Administrator should be treated as an application for revision in terms of old Section 81 of the Gold (Control) Act. Shri Shah further submitted that the appeal had been decided by the Gold Control Administrator without affording the hearing which was demanded in the appeal. He cited the examples of the FERA Appellate Board treating appeals as Revision Applications and not standing on technical formalities of the appeals being treated as time-barred. Shri Tushar Shah further relied on the Supreme Court’s decision in the case of MST Katiji and Ors. v. Collector, Land Acquisition Anantnag and Anr. 1987 (28) ELT 185 (S.C.). He submitted that this decision of the Supreme Court had left out the salient principles which should be taken into account by the statutory authorities in condoning the delay and deciding the matters on merits. Accordingly, Shri Shah submitted that the present appeal should also be considered on merits. .
3. On behalf of the Collector Shri Pattekar submitted that there was a delay of about 10 months in filing the appeal under old Section 80 of the Gold (Control) Act before the Administrator. The Administrator in his order had observed that he could condone the delay upto further 3 months beyond the normal period of limitation of 3 months. But the first appeal was hopelessly time-barred and there was no discretion vested in him to condone the delay. The Gold Control Administrator, therefore, correctly rejected the appeal as time-barred. Shri Pattekar further argued that the Gold Control Administrator and the Tribunal are creatures of the statute and unless they are vested with statutory discretion to condone the time-limit, they could not do so. In support of his contention Shri Pattekar cited the analogy of the decision of the Tribunal in the case of Miles India Ltd. 1983 (13) ELT 1026. He further argued that this decision of the Tribunal had been upheld by the Supreme Court as reported in 1987 (30) ELT 641 (S.C.). As regards the learned advocate’s reliance on the Supreme Court’s decision in the case of Collector, Land Acquisition, Anantnag and Another, Shri Pattekar submitted that this will apply where the statutory authority has been vested with discretion to condone the delay. This was not so in the case of the appeal to the Gold Control Administrator and he had no alternative but to reject the appeal as time-barred. Accordingly Shri Pattekar submitted that the present appeal should be rejected for the aforesaid reasons.
4. In reply, advocate Shri Tushar Shah raised a new point that the Collector’s adjudication order had not been served on the other partner or the firm. Therefore, the Gold Control Administrator’s order rejecting the first appeal as time-barred was not correct and proper. He further contended that the learned Departmental Representative’s reliance on the two decisions in respect of Miles India Ltd. were not apt in the circumstances of the present appeal. Therefore, he pressed his request for hearing and deciding the appeal on merits.
5. I have examined the submissions made on both the sides. The facts of tne case are not in dispute. The learned advocate had sought for adjournment to submit authorities which would support his contention that the Tribunal should go into the merits of the case ignoring the first appeal being rejected as time-barred. Though the adjournment was granted the learned advocate has not been able to submit any authorities as requested by him. Instead an appliction is sought to be made requesting for calling of the records of the first appeal from the Gold Control Administrator and for raising other contentions like the order of the Collector not having been served on the firm or on the other partner. A further grievance has been made that the Gold Control Administrator did not hear the appellants before rejecting their appeal as time-barred, even though a request for hearing had been made specifically in the appeal made to him under old Section 80. Examining the contentions on both the sides it is seen that the provisions of Section 80 as in force at the relevant time did not vest any discretion with the Appellate authority viz. Gold Control Administrator to condone the delay beyond 3 months of the normal time for presenting the appeal. Whatever be the reasons for the delay in submitting the appeal the same are not relevant when no discretion is vested with the statutory authority for condoning the delay. Even though I am not personally satisfied that the appellants had been prevented by sufficient cause from filing the appeal before the Gold Control Administrator in time, this fact cannot affect the correctness of the Gold Control Administrator’s order. From this point of view I concur with the learned Departmental Representative’s contentions that the Supreme Court’s decision in the case of Collector, Land Acquisition, Anantnag and another does not come to the rescue of the appellants. A further plea has been made that the Gold Control Administrator should have treated the appeal dated 26.12.1980 under old Section 80 as a Revision application under old Section 81 and disposed of the appellants’ case on merits. There is no force in this submission. It is for the party to either file an appeal under old Section 80 or a Revision Application under old Section 81 and the appellants knowingly chose the remedy of filing the appeal under old Section 80 in preference to the Revision Application. It is further seen that this appeal was drafted by an advocate and the advocate could have given correct guidance to M/s. Mangalore 3ewellery Works, when it was very explicit that their appeal under Section 80 was hopelessly time-barred. This was not done and, therefore, the appellants cannot now claim that the Gold Control Administrator should have treated their appeal or a review petition in the matter. Besides, the power under old Section 81 was discretionary in the Administrator and it cannot be argued that in the present appeal with the Gold Control Administrator, the Administrator should have exercised this power suo motu when he found that the appeal under Section 80 was time-barred. A further contention had been made that the Gold Control Administrator did not grant a personal hearing even though a request was made to him. It is seen that the provisions of Section 80 give discretion to the Appellate authority to grant the hearing or not to grant hearing vide Sub-section (2). Besides, the rules of natural justice cannot be put in the strait-jacket of a rigid formula as held by the Supreme Court in the case of K.L. Tripathi v. State Bank of India, AIR 1984 S.C. 273. It is, therefore, not incumbent on the part of the Gold Control Administrator to grant the hearing. Therefore, from this point of view, the Gold Control Administrator’s order does not suffer from any infirmity nor can any attempt such as the request for calling for the records of the appeal, be allowed to succeed in unsettling the issue of time bar. There is therefore, no substance in the request of the learned advocate, that the Tribunal should requisition the records of the appeal before the Gold Control Administrator. Even if this request was to be granted for the purpose of arguments, it is seen that no useful purpose could be served as the fact of time-bar is not disputed. The arguments of the advocate that only one partner of the firm received the original order cannot be considered as valid as the action had been taken against the firm and as such the service of the order on the partner is sufficient to treat as the service on the firm. Even the Collector has taken action only against the firm and not against the partner. The partner has acted only in the name of the firm. There is therefore, no substance in any of the arguments advanced by the learned advocate. I find that the Gold Control Administrator’s order rejecting the appeal under old Section 80 as time-barred was correct. Therefore, the present appeal has no force and the same is rejected accordingly.