SECOND OPPORTUNITY FOR FILING APPEAL IS NOT PERMISSIBLE WHEN APPEAL FILED BY THE FIRST TIME WAS RETURNED WITH DEFECT MEMO

[Mr. M. GOVINDARAJAN]

Rule 11 of CESTAT (Procedure) Rules gives powers to CESTAT to reject or amend the memorandum of appeal. Rule 11(1) provides that the Tribunal may, in its discretion, on sufficient cause being shown, accept a memorandum of appeal which is not accompanied by the documents referred to in Rule 9 or is in any other way defective, and in such cases may require the appellant to file such documents or, as the case may be, make the necessary amendments within such time as it may allow.

Rule 11(2) provides that the Tribunal may reject the memorandum of appeal referred to in Rule 11(1), if the documents referred to therein are not produced or the amendments are not made, within the time limit allowed. Rule 11(3) provides that on representation of any memorandum of appeal after making the necessary amendments, the memorandum of appeal shall be signed and dated by the officer competent to make an endorsement under Rule 7.

Rule 11(4) provides that the President may in his discretion authorize any officer of the Tribunal to return any memo of appeal, application or document(s) which is/are not in accordance with the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rule, 1982. The Officer so authorized may, however, allow the documents to be refilled after removal of the defects in the specified time. Rule 11(5) provides that on representation the Bench concerned may in its discretion either accept the memorandum or reject the same but the appeal/application may not be restored to its original number unless the Bench allows it to be so restored on sufficient cause being shown.

The issue taken in this article whether any person can file appeal for the second time when the appeal filed for the first time is returned with defect memo with reference to decided case law 'S.P. Worsted Spinning Mills V. Commissioner of Central Excise, Jalandhar' - 2010 -TMI - 77567 - (CESTAT, NEW DELHI)

In this case the applicants filed the appeal on 23rd August, 2004 against the order of Commissioner (Appeals) passed on 26th May, 2004 and received by the applicants on 23rd July, 2004. Since the same was not in accordance with the procedure prescribed under CESTAT (Procedure) Rules in relation to the appeal and the applicants were directed under memo dated 27th September, 2004 to remove the defects as stated below:

* In the stay petition, verification was not signed by the appellant;

* Attested copies of Order-in-Original and Order-in-Appeal were not filed;

* Certified copy (attested by the Department) or in Original Order-in-Appeal in first set was not filed by the appellant.

Since the defects were not removed the applicants were reminded many a time.

The applicant filed the appeal for the second time on 17th April, 2009 seeking the condonation of delay for four years and six months. The applicant put forth the following arguments before the Tribunal:

* None of the memos issued by the Tribunal for rectification of appeal were not received by the applicant as the factory was closed since 2000 and the applicants had shifted to the new address;

* No notice was received by the applicant in the new address;

* There was no staff present at the factory premises as the factory was closed since 2000; being so the applicants did not remove the defects in the appeal memo;

* The applicants had been seriously pursuing the matter and had done everything to the best of their ability and hence in the interest of justice, delay should be condoned;

* As the defect memos were not received by the applicants at the new address, the applicants could not remove the defects and, therefore, the applicants cannot be blamed for delay in the matter;

* It was only after return of the appeal papers on 24th February 2009 that the applicants came to know about the defect memos stated to have been issued to them and considering the same the appeal filed on 17th April, 2009 cannot be said to have been filed without sufficient cause for delay;

The Department contended the following:

* There is no record to show that actually the appeal was filed in the year 2004 and even assuming that any such appeal was filed, no question of filing the appeal for the second time can arise in the absence of documentary proof in support of the claim made in the application;

* There is no case made out for condonation of delay;

The Tribunal held that the contention of the applicant that the memos issued by the Tribunal have not been received by them is not acceptable. In the present application the applicants have intentionally avoided to disclose the address which they have mentioned in memo of appeal which was filed on 23rd August, 2004. Once it is not in dispute that in the appeal filed by the applicants on 23rd August 2004, they had disclosed the factory address as their address for correspondence and that the intimations were accordingly sent to the said address, it is too late in the day for the applicants to make any grievance of non receipt of the intimations sent to them at the said address. In any case, non receipt of those intimations cannot be aground for condonation of delay in the absence of explanation forthcoming from the applicants for non removal of the defects pursuant to the receipt of the first defect memo dated 27th September,2004, which was undisputedly duly received by him.

Undisputedly the applicants had filed appeal against the impugned order on 23.08.2004. Once the appeal is filed and if for non removal of defects the appeal is not registered, consequences thereof are that the applicants have failed to pursue the appellate remedy in the manner as is required under the law. Once the appeal is filed, one wonders how the applicants can have a second opportunity to file the appeal. Neither the procedure permits such an opportunity to the aggrieved party nor the Tribunal can allow such a party to file appeal for the second time as it would virtually result in laying down not only bad precedent but also will result in permitting filing of appeal contrary to the procedures laid down for that purpose.

The applicants contended that the appeal papers are returned and it cannot be said that the appeal was filed and pending before the Tribunal and considering the same it cannot be said that the present has been filed for the second time. The Tribunal held that the said contention is totally devoid of any substance.

The Tribunal held that Rule 11 empowers the President to authorize any officer of the Tribunal to return any memo of appeal which is filed not in accordance with the CESTAT (Procedure) Rules and also reject any memorandum of appeal for non compliance of requirement of law in relation to the filing of the memo of appeal.

The Tribunal further held that in any case, there being no sufficient cause disclosed for condonation of delay of four years and six months, even on that count there is no case made out for condonation of delay. The Tribunal dismissed the application.