MAINTAINABILITY OF APPEAL WHEN DOCUMENTS ANNEXUED ARE NOT LEGIBLE

[Mr. M. GOVINDARAJAN]

When an appeal is to be filed against the order of the lower authority, the appeal should be filed within the time limit specified in the relevant Act.  If the appeal is filed beyond the period of the limitation period delay condonation petition has to be filed.  The delay for each day is to be explained in the petition for delay condonation. The Appellate Authority may condone the delay if it is satisfied that the appellant was prevented from filing the appeal within the time.  If there is a limitation prescribed for delay condonation, the Appellate Authority cannot condone the delay beyond the limited period.  The appeal shall be filed in the prescribed form and along with the prescribed fee.    The appeal shall be accompanied by the relevant documents relied on by the appellant.

The Appellate Authority may dismiss an appeal either on ground of limitation or on the ground of jurisdiction.  Whether the Appellate Authority can dismiss the appeal on the ground the documents attached to the appeal are not legible?

In ‘Madhusudan Industries Limited V. Union of India’ – 2017 (2) TMI 13 - GUJARAT HIGH COURT the petitioners filed the present petition against the dismissal order the Tribunal.  The Tribunal dismissed the appeal as it was not maintainable in view of the fact that the documents annexed with the memorandum of appeal are not legible.  Against this order the petitioner put forth the following arguments before the High Court-

• Section 35B of the Central Excise Act, 1944 and section 35F of the said Act do not provide for the production of any document along with the memorandum of appeal;
• Rule 9 of Customs, Excise and Service Appellate Tribunal (Procedure) Rules, 1982 requires that the appeal memorandum should be accompanied by four copies of the order-in-appeal or the order-in-original;
• Rule 16 provides that along with the appeal or within one month of filing of appeal, the appellant shall submit 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 time of hearing of the appeal;
• The appellant was required to produce the documents on which he proposes to relyupon;
• In the present case at the relevant point of time the petitioner had submitted all the relevant documents on which it proposed to rely upon;
• Due to lapse of time the documents have faded;
• Fading up of the documents on account of the lapse of time would not tantamount to the petitioner not having produced the documents on which it places reliance;
• In any case, on account of non production of the documents, at best, the Tribunal can draw an adverse inference but the appeal cannot be dismissed on the ground of non maintainability.

The petitioners further pointed out that several similar orders were passed by the Tribunal. In numerous cases the Tribunal has perfunctorily dismissed the appeals as not maintainable merely on the ground that certain documents or states had not been filed with the appeal memorandum, without even given an opportunity to the appeal to produce the same on record, despite the fact that the appeal had been pending for several years.

The petitioners prayed the Court that the Tribunal is required to be restrained from passing similar orders dismissing the appeals on account of non maintainability merely because certain documents are not placed or the documents have become illegible due to lapse of time.

The High Court considered the submissions put forth by the petitioners.  The Court was of the view that the matter requires consideration.  The Court held that the interim relief granted by the Tribunal, West Zonal Bench at Mumbai vide their order dated 25.08.2006 in Appeal No. E/844/2006 shall continue.  The High Court hoped that the Tribunal shall keep in mind the fact that the Courts and the Tribunals are respected for the matters which they adjudicate and not the matters which they dispose.  The Tribunal is required to try to decide as many cases as possible, disposal of appeal in such a cavalier fashion would only give rise to more litigation and would not bring an end to the same.              

Discussions to this article

[satish kumar]

Brought very pertinent point to the fore.

Thanks Dear