2017 (4) TMI 434 - HC - Central Excise

Maintainability of appeal - dismissal on the ground that the panchnamas, statements by the appellants are illegible and some of the statements are in vernacular language (Gujarati) and not translated ones - The Appellate Tribunal was further of the view that the appeal was of 2006 and hence, there was no reason to keep it pending - Held that - sub-rule (1) of rule 11 of the rules, the Tribunal can upon sufficient cause being shown, in its discretion, accept a memorandum of appeal even if it is not accompanied by the documents referred to in rule 9 or is in any other way defective, and in such cases may allow the appellant to file such documents, or make necessary amendment within such time as it may allow. Under sub-rule (2) of rule 11, the Tribunal may reject the memorandum of appeal referred to in sub-rule (1) if the documents referred to therein are not produced or the amendments are not made, within the time-limit allowed. The rule, however, provides for rejection of memorandum of appeal at the threshold, and does not provide for rejection of an 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 because the documents submitted at the relevant time have over a period of time become faint and illegible. At best, the party can be called upon to remove the defect and provide legible documents, however, that cannot be a ground for dismissal of the appeal, and that too, on the ground of maintainability. Moreover, when there is no provision of law which provides for production of documents as stipulated by the Tribunal while dismissing the appeals, the Tribunal is not justified in perfunctorily dismissing appeals on grounds which are not envisaged under any statutory provision. The appeal as well as the interim orders made therein are restored - petition allowed - decided in favor of petitioner.

Summary

Issues Involved:
1. Dismissal of appeal by the Appellate Tribunal due to illegible documents and untranslated vernacular statements.
2. Compliance with statutory provisions for filing appeals.
3. Tribunal's insistence on submission of all documents relied upon in the show cause notice.
4. Impact of delay in adjudication by the Tribunal.
5. Requirement of translated documents in the Tribunal's proceedings.
6. Tribunal's discretionary powers and procedural rules.

Detailed Analysis:

1. Dismissal of Appeal by the Appellate Tribunal:
The petitioners challenged the dismissal of their appeal by the Customs, Excise, and Service Tax Appellate Tribunal, Ahmedabad. The Tribunal dismissed the appeal as not maintainable because the panchnamas and statements were illegible, and some statements were in Gujarati without translations. The Tribunal also noted that the documents like transporters' challans and invoices were unreadable and deemed necessary for considering the grounds raised in the appeal.

2. Compliance with Statutory Provisions:
The petitioners argued that the statutory provisions do not mandate that an appeal is unmaintainable if certain documents are not submitted. They cited Section 35B of the Central Excise Act and Rule 9 of the Customs, Excise, and Service Tax Appellate Tribunal (Procedure) Rules, 1982, which require only a certified copy of the order appealed against. Rule 16 allows for the submission of a paper book containing documents the appellant proposes to rely upon.

3. Tribunal's Insistence on Submission of All Documents:
The petitioners contended that the Tribunal's insistence on submitting all documents referred to in the show cause notice is illegal and contrary to the statutory scheme. They argued that the Tribunal should only require documents necessary for deciding the appeal and not dismiss the appeal for not submitting all documents. The Tribunal's decision to dismiss appeals on such grounds was seen as unjustified and without jurisdiction.

4. Impact of Delay in Adjudication:
The petitioners highlighted that the appeal had been pending since 2006 and was heard twice but could not be decided due to various reasons, including the demise or transfer of Tribunal members. They argued that the delay in adjudication led to the documents becoming illegible, and the Tribunal should not penalize the parties for this delay by dismissing the appeal.

5. Requirement of Translated Documents:
The respondents argued that the Tribunal was justified in insisting on translations of documents in the vernacular language as the Tribunal's language is English, and it may permit the use of Hindi. The petitioners countered that the lower authorities had not required translations, and the Tribunal should only call for translations if necessary for deciding the appeal.

6. Tribunal's Discretionary Powers and Procedural Rules:
The court examined the relevant statutory provisions and procedural rules, noting that Rule 11 allows the Tribunal to accept a memorandum of appeal even if not accompanied by certain documents, and Rule 16 requires the appellant to submit documents they propose to rely upon. The court found that the Tribunal's dismissal of the appeal on grounds of maintainability due to illegible documents was not justified, especially when the appeal had been admitted and interim relief granted.

Conclusion:
The court quashed and set aside the Tribunal's order, restoring the appeal and interim orders. The court emphasized that an appeal maintainable at one stage cannot become non-maintainable due to the passage of time and illegibility of documents. The Tribunal should call for necessary documents during the hearing rather than dismissing the appeal. The court also noted that the Tribunal's insistence on translated documents should be based on necessity and relevance. The petition was allowed, and the Tribunal was directed to decide the appeal on merits.