TMI Blog2001 (9) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... r hearing on various occasions. Notices sent by registered post were not responded to and even attempts made by the department to have the notices served through the Assessing Officer failed to yield any results. It is quite apparent that adequate opportunity has been allowed. 3. The main fact to which we would however, like to advert is that the appeals are defective, inasmuch as, copies of the assessment orders and grounds of appeal before the first appellate authority have not been filed and the copies of the penalty orders are also filed short. Defect memos were sent on a number of occasions beginning 30th July, 1991 and continously thereafter on 22nd November, 1991, 5th February, 1992,9th April, 1992 and thereafter. There has been no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-1997, notice for 29-9-1997 was sent through ordinary post as per notice dated 5-8-1997 and there is no evidence regarding service of this notice on the assessee and under these circumstances and in view of facts as stated above, I am of the view that it would be appropriate and legal to send fresh notice of hearing through Registered AD Post on the assessee, as at no stage, it can be held that effective service of notice is there and moreover last notice dated 5-8-1997 is important which should have been necessarily served upon the assessee as per provisions of law before disposal of appeal which was sent through DR but evidence of service is not there as per record. Therefore, I direct the registry to send fresh notice of hearing for pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. Notices of hearing were sent for 24-12-1996, 17-12-1996, 9-6-1997 and 13-6-1997. On the last mentioned date and as also on some earlier dates, the Bench directed that the notices be served through the Departmental Representative. It is seen from record that the last date of hearing in these appeals was 29-9-1997. The notice for the above date appears to have been issued round on 5-8-1997 as per observations of the Assistant Registrar. 4. On the date fixed i.e. 29-9-1997, the ld. Vice President proposed the following order:-- "At the time of hearing of the appeals, nobody was present on behalf of the appellant and a perusal of the record shows that right from 31st March, 1992 when the appeals were first fixed for hearing, nobody has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w before disposal of appeal which was sent through D.R., but evidence of service is not there as per record. The ld. Judicial Member accordingly, directed the registry to send fresh notice of hearing for providing an opportunity to the assessee. 6. On account of above difference, the issue has been referred to me. The notice of hearing was sent to the assessee through registered cover. None has appeared on behalf of the assessee. I have heard ld. DR and with his help considered the relevant record. On careful consideration of file, I find that there is no evidence of service of any notice for 29-9-1997 on the assessee. In this connection, a very useful reference can be made to the following observations of Hon'ble Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides "what to accompany the memorandum of appeal" and as per clause (1) of sub-rule (2) of the said Rule states that "in the case of appeal against the order of penalty, the memdorandunm of appeal shall also be accompanied by two copies of assessment order." The sub-rule (3) of Rule 9 states as follows:-- "The Tribunal may in its discretion accept a memorandum of appeal which is not accompanied by all or any of the documents referred to in sub-rule (1)." Again Rule 12 of Appellate Tribunal Rules is relevant and is to the following effect:-- "The Tribunal may reject a memorandum of appeal if it is not in the prescribed form or return it for being amended within such time as it may allow. On representation, after such amendment, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not been effected. In my considered opinion on the facts of the case, the Tribunal could not proceed to reject the memorandum without evidence of the notice on the assessee. The only appropriate step, which the Tribunal could take, was to send a fresh notice and serve the same on the appellant in accordance with law. The directions of the ld. Judicial Member are quite in order. I, therefore, agree with the view taken by the ld. Judicial Member. 9. The appeals be now fixed for hearing before the Division Bench in accordance with law after service of notice on the appellant for 10-10-2001. The notice should also provide opportunity to the appellant to remove defects in appeals. The matter be now put up before the regular Bench. Per S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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