ORDER
M.S. Liberhan, C.J.
1. The petitioners sought a mandamus directing the respondents to comply with Rule 174 of the Central Excise Rules, 1944, hereinafter referred to as “the Rules” and to issue a registration certificate.
2. The factual matrix is not in dispute. The petitioners are the transferees from the registered persons of the premises. Sub-rule (5) of Rule 174 enjoins a duty on the transferee to obtain a fresh certificate. The operation mechanism has been envisaged by the Rule on an application for issuance of registration certificate as provided by sub-rule (9). Sub-rue (9) envisages that the proper officer would proceed to grant a registration certificate within 30 days of the receipt of the application. A deeming provision has
been provided that if the registration certificate is not granted within the stipulated period, the registration applied for shall be deemed to have been granted Herein, it may be noticed that under sub-rule (8) every registered person who ceases to carry out the operation would surrender his registration certificate immediately.
3. The petitioners who are the transferees of a business from the registered persons, applied on 6-7-1998 for issuance of a fresh certificate to carry on their own business. The said application was returned on 6-8-1998 on the ground that the transferee is under a liability to clear the dues under the Act which they have failed to do. It was further demanded from the petitioners a ‘no due certificate’ with respect to their predecessor-in-interest. We may hasten to add that the predecessor-in-interest from whom the dues were claimed, informed the department that they undertake to fulfil their liability provided dues are notified.
4. The learned Counsel for the petitioners contended that the statutory authorities are bound to perform their statutory duty and they have got no right to decline to issue the registration certificate inter alia on the ground that their predecessors were in arrears. The learned Standing Counsel for the Central Government contends that as long as the existing registration is not surrendered, a second registration cannot be issued. In this context, reference was made to sub-rule (8).
5. It would be expedient to notice the mechanism provided for issuance of a registration certificate vide Chapter VIII of the Rules. Rule 174 enjoins a duly on a person, to secure a registration certificate, to get himself registered for dealing in particular trade provided under the Rule. A person without a certificate has been debarred from doing business specified in
the rule. Sub-clause (2) empowers the Central Board of Excise and Customs by notification in the Official Gazette to relax the conditions and the specified person or class of persons need not obtain such registration certificate. Sub-rule (3) envisages a separate registration for each premises Sub-rule (4) provides that registration certificate will be issued in the specified form for the specified premises. It has been provided that where a registered person transfers his business to another person, the transferee shall obtain a fresh certificate. If the registered person desires to manufacture a new product, he has to get the product endorsed on his registration certificate. Similarly, if a registered person ceases to carry out the operation or operations, he is required to surrender his registration certificate immediately. On receipt of the application for issuance of the registration certificate, the proper Officer has been enjoined to proceed with the grant of registration certificate within thirty days of the receipt of the application, provided that, if the certificate is not granted within the said period, the registration applied for shall be deemed to have been granted. It will be expedient to reproduce sub-rule (9) of Rule 174 in verbatim which runs :
“(9) The proper officer shall proceed to grant a Registration Certificate under this Rule within thirty days of the receipt of an application. If registration certificate is not granted within the said period, the registration applied for shall be deemed to have been granted.”
A plain reading of sub-rule (9) envisages that the issuing authority is only required to issue the certificate of registration within thirty days and if appropriate certificate is not issued, the deeming provision comes into operation. An effective meaning is inferable to the deeming provision that the issuing authority has nos jurisdiction to decline to issue the certificate. Thus the return of the application, when the authority cannot refuse the issuance
of registration certificate, would be in effect, declining to issue the certificate, which is not envisaged under the Rules.
6. Though the learned Counsel for the respondents contended that in view of the existing registration which has not been surrendered, second registration cannot be issued. There is nothing which can be read into this Rule that it is a registration certificate issued for the purpose of carrying out a trade in a particular premises by a particular party. There is no statutory provision pointed out either under the Act or the Rules that in the premises if a particular person is having a registration, second registration certificate cannot be issued. According to sub-rule (11) if any holder of a certificate has violated any rule or has found to have committed the breach of the condition of the Act or the Rules or has been convicted of an offence under Section 161 read with Section 109 or with Section 116 of the IPC the registration certificate may be revoked. It no where confers jurisdiction on the authorities not to grant the certificate. It empowers the authorities only for revocation or suspension of the certificate in the particular circumstances provided by sub-rule (11) of Rule 174.
7. Thus in view of the observations made above, we find that the respondents have no jurisdiction to decline to issue the certificate of registration or return the application on the ground that the petitioners’ predecessor was in arrears. Without quantifying his arrears or taking into consideration his dues or taking any steps for cancellation of his certificate or revocation of his certificate under sub-rule (11), the authorities cannot decline to issue a registration certificate as envisaged by Rule 174(9) to the petitioner. As a necessary consequence, the respondents are directed to consider the case of the petitioners for issuance of an appropriate certificate in accordance with law within 15 days from the
date of submission of the application. Otherwise, the deeming provision will come into operation. The Counsel for the petitioners makes a request that the petitioners will re-submit the application within one week from today. Permission is accorded.
8. The writ petition is disposed of accordingly at the admission stage.
