TMI Blog2007 (8) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The contention is that these appeals are not maintainable as they have been filed contrary to the provisions of law. Stated differently, the contention is that what is to be done through an agent, a principal can not do himself. 2.As conflicting decisions on the issue were relied on by both sides, the Single Bench of the Tribunal at Delhi referred the issue to a Larger Bench by its order dated 13-3-07. When the same objection was raised before a Division Bench of the Tribunal at Kolkata, that bench also referred the issue to a Larger Bench vide order dt. 4-7-07. The specific reference may be noted : "Whether the appeal filed by the Commissioner himself under Section 35B(2) of the Central Excise Act, 1944 is maintainable". 3.We have perused the record and heard both sides at length. 4.Chapter VIA of the Central Excise Act relates to appeals. While Section 35 relates to Appeals to Commissioner (Appeals), Section 35B relates to Appeals to the Appellate Tribunal. Sub-section 2 of Section 35B which deals with appeals by revenue reads as under : The Commissioner of Central"2 Excise may, if he is of opinion that an order passed by the Appellate Commissioner of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d perform a duty which he can do through an agent. The contention is that since the appeal is filed "on his behalf upon his authorization", the Commissioner is the appellant and a statutory right can be exercised by a person directly or indirectly. It is being pointed out that this issue remains directly answered by the Tribunal's decision of 1998 in the case of Kay Iron Works (P) Ltd. 8.We find that the referal order of the Calcutta Bench has considered the issue from various aspects and has expressed the view that since the Commissioner is competent to "direct any Central Excise Officer authorized by him in this behalf, and since he himself is a Central Excise Officer filing of appeal by him is like authorizing himself". The bench has also noted that a power to direct the filing of appeal does not make the authority powerless or take away from him the power to file appeal himself and if the provision is read as making the authority powerless to act himself, it would leave revenue remediless. The opinion of the bench is that since it is well settled that what cannot be done directly cannot be done indirectly, the reverse is also true that what can be done indirectly, can be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel referred to will relate to appeals filed against the orders of the Collectors after review by the Board for their legality and propriety. This being not such an appeal, the said requirement would not apply and the appeal has been filed under proper authority. Further, we hold that the Collector could very well file the appeal himself instead of authorizing any subordinate officer". 12.It is without noticing this Division Bench order that the subsequent orders were passed by the Tribunal. Therefore, the subsequent orders cannot be treated as constituting the correct precedent. 13.The contention of the appellant is that Section 35B(2) is the only manner way of filing appeal recognized in the statute and therefore, direct filing of appeal is contrary to the statute. We are not able to agree with this contention. Section 35(1) allows filing of appeal by assessee. Section 35B(2) contains the provision for filing of an appeal by the revenue. The law specifically authorizes the Commissioner. Sub-section (3) relates to time limit for filing appeal and Sub-section 4 relates to cross objections and sub-section 5 relates to the power of the Tribunal to allow filings of delayed appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35B, which relates to appeals to Appellate Tribunal, specifically sets out in sub-Section (2) that Commissioner shall cause revenue appeals to be filed against an order passed by the Appellate Commissioner, if he is of the opinion that the order "is not legal or proper". Thus, the law's intention is that illegal and improper orders should not become final and should be taken in appeal before the Appellate Tribunal. The implementation of this provision should be to subserve this purpose and not to subvert it. If appeals filed against illegal or improper orders are rejected at the threshold for the reason that they are defective in regard to filing, that will lead to the defeating of the purpose for which appeals are provided for. That Courts and Tribunals should advance the intention of the legislature while interpreting statutes is clear from the following ruling of the Hon'ble Supreme Court in the case of Giridhari Lal Sons v. Balbir Nath Mathur (AIR 1986 SC 1499). Ruling to the same effect by British Court also remains approved by the Hon'ble Supreme Court. "So we see that the primary and foremost task of a Court in interpreting a statute is to ascertain the intention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi Municipal Corporation or Shri Mathur was the complainant within the meaning of Section 417(3) of the Code of Criminal Procedure. It was argued on behalf of the respondent that the complainant was Shri Sham Sunder Mathur, the Municipal Prosecutor and the Delhi Municipal Corporation was not competent to make an application for special leave under Section 417(3), Cr. P.C. We are unable to accept this argument as correct. It is true that Shri Sham Sunder Mathur filed the complaint petition on August 20, 1960. But in filing the complaint Shri Mathur was not acting on his own personal behalf but was acting as an agent authorized by the Delhi Municipal Corporation to file the complaint. It must, therefore, be deemed in the contemplation of law that the Delhi Municipal Corporation was the complainant in the case. The maxim qui per alium facit per seipsum facere videtur (he who does an act through another is deemed in law to do it himself) illustrates the general doctrine on which the law relating to the rights and liabilities of principal and agent depends. We are, therefore, of opinion that Shri Mathur was only acting in a representative capacity and that the Delhi Municial Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Pleader. Sub-rule (1) of the said Rule provides, inter alia, that no Pleader shall act for any person in any court unless he has been appointed for the purpose by such person by a document in writing signed by such person. Sub-rule (2) adds that every such appointment shall be filed in court and shall be deemed to be in force until determined with the leave. Of the Court in the manner indicated. By it. Technically, It may be conceded that the memorandum of appeal presented by Mr. Daundkar suffered from the infirmity that respondent No. 1 had signed his vakalatnama in favour of the Government Pleader and Mr. Daundkar could not have accepted it, though he was working in the Government Pleader's office as an Asstt. Govt. Pleader. Even so, the said memo was accepted by the office of the Registrar of the Appellate Side of the High Court, because the Registry regarded the presentation of the appeal to be proper; the appeal was in due course admitted and if finally came up for hearing before the High Court. The failure of the Registry to invite the attention of the Assistant Government Pleader to the irregularity committed in the presentation of the said appeal cannot be said to be ir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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