TMI Blog2017 (4) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal which has been entertained at the initial stage. Having regard to the provisions of rule 11 of the rules, it is evident that at the stage of filing of memorandum of appeal, the same was found to be in order, inasmuch as, the appeal has been entertained at that time and has also been admitted. The stay application filed by the petitioners has also been heard and the petitioners have been granted relief. The very fact that the appeal has been admitted by the Tribunal after hearing the parties, is indicative of the fact that it has been found to be maintainable. Moreover, when the memorandum of appeal has not been rejected by the Tribunal under sub-rule (2) of rule 11 of the rules and when the Registrar/Deputy Registrar or any other authorised officer has not returned the specified documents or set of documents as contemplated under subrule (5) of rule 16, and the appeal has been admitted, it can be safely presumed that the requirements of rules 9 and 16 of the rules were duly complied with at the relevant time - an appeal which was maintainable at one stage of the proceeding, after due compliance with the provisions of the rules, cannot become non-maintainable merely becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad-III, and amongst other documents, also submitted affidavits of 22 dealers whose statements were recorded by the Investigating Officers. The show cause notice culminated into an Order in Original No.29/Commr/2005 dated 19.12.2005, whereby the third respondent confirmed the central excise duty demand of ₹ 54,38,208/- with interest and penalty equal to the amount of duty. Being aggrieved, the petitioner filed a substantive appeal along with a stay application before the Appellate Tribunal, Bombay. After hearing the petitioners on the stay application on 25.08.2006, the Appellate Tribunal, Bombay directed pre-deposit of ₹ 10,00,000/- and waived condition of pre-deposit of the rest of the disputed amounts. The petitioner company has complied with the direction of predeposit and the stay order made by the Appellate Tribunal on 25.08.2006 had been continued all throughout. 3. It is the case of the petitioners that when an Additional Bench of the Appellate Tribunal was set up at Ahmedabad by the end of October, 2006, the above Appeal No.E/844/2006 came to be transferred to the Appellate Tribunal, Ahmedabad, along with all other appeals arising out of the State of Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned advocate for the petitioners assailed the impugned order by submitting that the dismissal of the petitioner s appeal is not a solitary instance before the Appellate Tribunal, but over a hundred such orders have been made by the Appellate Tribunal during last four to five months dismissing about three hundred or so appeals of various appellants, who had been waiting for their turn for final hearing for several years, only on the ground that all the documents shown as relied upon in the show cause notice were not filed with the appeal, and therefore, the appeals were not maintainable. It was submitted that the statutory provisions do not lay down that an appeal before the Appellate Tribunal was not maintainable if the documents like statements recorded by the Investigating Officers, panchnamas etc., were not submitted with the appeal paper book. According to the learned counsel, if a document was not filed or the document filed with the appeal a few years back had faded and become illegible, then such document could be called for if the same was found to be vital to decide the issue involved in the appeal; but the appeal itself could not be dismissed on such ground. It was conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appeal would be maintainable only if documents relied upon by the revenue while issuing the show cause notice were submitted with the appeal papers. Reference was made to the provisions of section 35B of the Central Excise Act under which the petitioner company filed the appeal before the Appellate Tribunal, to point out that the same nowhere lays down any such condition. It was submitted that under rule 9 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (hereinafter referred to as the rules ) the only requirement for filing the appeal is to submit a certified copy of the order appealed against. Rule 16 of the rules refers to filing of a paper book, but there also, it is laid down that a paper book containing copies of the documents which the appellant proposes to rely upon on the hearing of the appeal may be filed by way of a paper book. It was submitted that therefore, the view of the Appellate Tribunal that an appeal was not maintainable if all documents relied upon while issuing the show cause notice are not submitted, is illegal and contrary to the statutory scheme. 5.3 The learned advocate further submitted that submission of ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses as well as the statements of some of the witnesses are in Gujarati. Therefore, when the language of the Appellate Tribunal is in English and the Appellate Tribunal, in its discretion can permit use of Hindi in its proceedings, it was wholly justified in insisting upon furnishing of translations of the documents which are in the vernacular language. Reference was also made to sub-rule (7) of rule 16 of the rules, which provides that all paper books shall contain clearly legible documents duly paged, indexed and be tagged firmly. It was submitted that furnishing of legible documents is the need of the statute, therefore, no fault can be found in the approach of the Appellate Tribunal in insisting upon legible documents being filed. Reference was also made to rule 41 of the rules, which bears the heading Orders and directions in certain cases and lays down that the Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process of to secure the ends of justice. It was submitted that therefore, the Appellate Tribunal was wholly justified in directing the appellants to prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Act, the person desirous of appealing against such order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. The proviso thereto provided for dispensation of such deposit in the circumstances specified therein. Section 35F of the Act has since been amended and provides that the Tribunal or Commissioner (Appeals), as the case may be, shall not entertain any appeal unless the appellant has deposited the percentage of duty and/or penalty as laid down thereunder. Therefore, there is a mandate to deposit the amount as provided under section 35F of the Act, failing which the appeal cannot be entertained. 10. In exercise of powers conferred by sub-section (6) of section 129C of the Customs Act, 1962 read with sub-section (1) of section 35D of the Central excise and Salt Act, 1944 and sub-section (1) of section 81B of the Gold (Control) Act, 1968, the Customs, Excise and Service Tax Appellate Tribunal has made the rules called the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982. Rule 9 of the said rules bears the heading What to accompany memorandum of appeal? and provides for filing of memoran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) or sub-rule (2) after the expiry of the period referred to therein. (4) The Tribunal may on its own motion direct the preparation of as many copies as may be required of a paper book by and at the cost of the appellant or the respondent, containing copies of such statements, papers or documents as it may consider necessary for the proper disposal of the appeal. (5) The President may in his discretion direct by a general or special order that only such documents as may be specified by him in his order may be initially filed with the appeal; and the paper book as prescribed in sub-rules (1) and (2) may be filed subsequently on receipt of notice of hearing of the appeal by way of a general or specific notice for the case (s) or advance cause list. The President may further direct that in case of nonfiling of the documents as specified under this Rule, the Registrar/ Deputy Registrar or any other authorized officer would be competent to return the specified documents or sets of documents and to receive the same back only after rectification of the defects to the satisfaction of the proper officer or the Bench as the case may be and on the return the case may be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such number of copies as of the memorandum of appeal, a paper book containing copies of the documents, statements of witnesses and other papers on the file of, or referred to in the orders of, the departmental authorities, which he proposes to rely upon at the hearing of the appeal. Sub-rule (5) of rule 16 of the rules provides that the President may in his discretion direct by a general or special order that only such documents as may be specified by him in his order may be initially filed with the appeal; and the paper book as prescribed in sub-rules (1) and (2) may be filed subsequently on receipt of notice of hearing of the appeal by way of a general or specific notice for the case (s) or advance cause list. The President may further direct that in case of nonfiling of the documents as specified under this rule, the Registrar/Deputy Registrar or any other authorised officer would be competent to return the specified documents or sets of documents and to receive the same back only after rectification of the defects to the satisfaction of the proper officer or the Bench as the case may be and on the return the case may be assigned a new number. Thus, under sub-rule (5) of rule 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, which has heard the appeals finally on two earlier occasions, could not render decisions at the relevant time, and on account of lapse of time the accompanying documents have become illegible, the parties cannot be penalized by dismissing their appeals, that too, on the ground of maintainability. One fails to understand as to how an appeal which was maintainable at the initial stage becomes non-maintainable at a subsequent stage without there being any change in the statutory provisions. It has been pointed out that, this is not a singular case in which the Tribunal has dismissed the appeal at the final hearing stage, but in 300 or so cases, on the ground of non-submission of documents relied upon the adjudicating authority or the documents having become illegible on account of lapse of time or similar grounds, which, in the opinion of this court reflects a really sorry state of affairs. The Tribunal, it appears, in its quest for easy disposals has abdicated its function of adjudicating cases on merits and has made a short shrift of the matters and in the process, subjected the parties to undue difficulties and harassment. The Tribunal has failed to appreciate the consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not precluded from calling upon the parties to produce the same. 19. The learned advocate for the petitioners has submitted that before the matters reached the Tribunal, they would have travelled before the adjudicating authority and then before the Commissioner (Appeals), who too, are not conversant with the vernacular language. Therefore, in cases where the lower authorities have not thought it fit to call for the translations of such statements, there is no warrant for the Tribunal to demand the same without examining the necessity of furnishing such translations. It was pointed out that the orderin- original ordinarily contains the gist of the statements and by and large, there is no necessity for furnishing the translations of the statements of witnesses. In the opinion of this court, the grievance voiced by the learned counsel is justified, inasmuch as there is no need for the Tribunal to insist upon furnishing the translated version of statements of witnesses/documents, without first examining as to whether or not the material on record is sufficient for the purpose of deciding the appeal and as to whether it is necessary to look into the statements which are in the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench at Ahmedabad. It was submitted that in these circumstances, even if the documents are filed by the appellants in terms of the impugned orders passed by the Tribunal, the appeals would not stand revived till a Division Bench is available. In the meanwhile, the revenue may proceed to recover the demands under the orders-in-original or the orders which are subject matters of challenge before the Tribunal, which would act to the miseries of the assesses. 22. In the other orders passed by the Tribunal which have been annexed along with the petition, the Tribunal has given opportunity to the appellants therein to revive the appeals on production of the documents within a reasonable period as per law. It has been submitted by the learned counsel that in many cases, due to efflux of time such documents may not be available and that in the absence of such documents, those appellants would not be in a position to revive the appeals for all times to come. Therefore, the orders of dismissals of appeals on the ground of maintainability with liberty to revive after the documents are filed, would finally seal the fate of those appellants. In the opinion of this court, the Tribunal is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
