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TMI Blog1995 (5) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... Bagaria appearing on behalf of the appellant Company contended before us that under Sections 35 and 35B of the Central Excises and Salt Act, 1944 an appeal against an order has to be filed and the order is one and one appeal is maintainable. In support of his contention he has relied upon several decisions which will be referred to by us. 2. The point that arises for our determination is whether one appeal is sufficient in this case. In the first instance, it is seen that the Adjudicating Authority disposed of 36 show cause notices by a common order and only one order number is given. Against that order a common appeal was filed and that appeal was disposed of by the Collector of Central Excise (Appeals). But the learned S.D.R. contended that even though one number is given to the order, in fact 36 show cause notices are disposed of by a common order. Even though one number alone is allotted to the orders passed by the lower authorities it was his contention that a common order passed concerning 36 show cause notices can be taken to be incorporating order on each of the show cause notices. Therefore, in fact, they should be considered as 36 orders pertaining to each of the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r mind this argument appears rather specious. The status of an order cannot be determined by the circumstances of an authority giving one serial number or the serial numbers equal to the number of show cause notices covered by the order. We observe that once a show cause notice has been issued the disposal of the same would result in an order or a decision and it is this order or a decision on a show cause notice which can be the subject matter of appeal. Dealing with a number of show cause notices compendiously be a common order does not mean that no separate order on each of the show cause notices exists. The common order passed can be taken to be incorporating orders on each of the show cause notices. In our view, therefore, it is the disposal of each show cause notices which gives rise to an order and it is an order on each of the show cause notices which are to be dealt with in a appeal. The very fact that there are separate show cause notices shows that lis is in the context of separate parameters and each of the issues reflected in the show cause notices will have to be decided in the context of the parameters governing a particular show cause notice. The learned Counsel has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sees. We do not wish to express any opinion on the position under the Indian I.T. Act, 1922, and the Rules framed thereunder. Our opinion is based upon the provisions contained in the I.T. Act, 1961, and the Rules and forms provided under that Act. Further, we are restricting our decision to the type of orders with which we are concerned, both of which orders have been passed by the ITO on the same day. Bearing all this in mind, we are of opinion that the Tribunal had come to the correct conclusion on the maintainability of the composite appeal." The above decision clearly goes to show that unless there is an express provision of the Act or the Rules for the mandatory filing of two appeals or a clear implication to that effect, a composite appeal is maintainable. 4. He, further, relied upon another decision reported in 1986 (162) ITR 5 wherein at page 19 their Lordships of the Rajasthan High Court held as follows :- Apart from that, the law has to be interpreted to meet the ends of justice. It should not be hypertechnical and, if any bona fide mistake is found in the matter of procedure, it should be considered in a way which may lead to a harmonious construction of the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 380 (Raj.), Bishambar Dayal Sriniwas v. CIT - [1986] 162 ITR 5 (Raj.) and Patel and Co. v. CIT - [1986] 161 ITR 568 (Guj.). A perusal of this decision goes to show that if a right of appeal is given to a party and when the Act never contemplates that against a composite order separate appeals have to be preferred then one appeal itself is sufficient in this regard. Applying the above principles to the facts of this case it is seen that the point involved in all these cases pertaining to the 36 show cause notices are the same except for the fact that the period involved as well as the amount of duty are different. Since all the common questions of law have been disposed of by a common order, one common appeal itself is maintainable. 6. Reliance was also placed on a decision reported in 1993 (205) ITR 144 wherein the Hon ble Gujarat High Court at page 148 held as follows :- As pointed out by this court in Patel and Co. v. CIT - [1986] 161 ITR 568, if the Act and the rules made thereunder do not prohibit the filing of a composite appeal, it should not be dismissed on the ground that it is not competent. If appeals are provided to the same authority against two or more orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved is the same had been disposed of by the lower authorities by passing a composite order, a single appeal itself is maintainable before this Tribunal. 7. Reliance was also placed on a decision of the Hon ble Gujarat High Court reported in 1986 (161) ITR 568 wherein at pages 573 and 574 their Lordships held as follows :- The moot question, however, is whether a composite appeal could lie both on the question of assessment of income under sub-section (3) of Section 143 of the Act as well as on the question of the status of the assessee firm no matter whether the appeal under the former can lie under clause (c) and the latter under clause (j) of sub-section (1) of Section 246 of the Act. It must be remembered that under both these clauses, the Income-tax Officer s order is appealable to the same authority, namely, the Appellate Assistant Commissioner. It must also be borne in mind that the Income-tax Officer made the assessment under sub-section (3) of Section 143 of the Act under the same order under which he determined the status of the firm as unregistered. In other words, one regarding the assessment made under sub-section (3) of Section 143 and the other touching on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , both the Appellate Assistant Commissioner and the Tribunal adopted a highly technical approach in throwing out the assessee s appeal on the ground that a composite appeal did not lie. It is well-settled that a right of appeal conferred by the statute has to be liberally construed and when the appeal lies to the same authority, it would be too technical an approach to adopt to partly reject the appeal on the ground that a separate appeal ought to have been filed instead of a composite one. The right of appeal is by way of a remedy provided by the statute and should not ordinarily be denied to the assessee unless the law prohibits it. The Appellate Assistant Commissioner ought to have dealt with the substance of the matter rather than throwing out the assessee s appeal in so far as it related to the status on the technical ground that a composite appeal could not be entertained. We are surprised to find that the Tribunal does not consider this approach of the Appellate Assistant Commissioner as technical. The Appellate Assistant Commissioner s approach in throwing out the appeal which undoubtedly lay to him on the sole ground that a composite appeal is not maintainable can only b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ika Copiers v. Collector of Central Excise reported in 1991 (56) E.L.T. 350. But that decision is not applicable to the facts of this case. In that particular case, there were thirteen orders-in-original passed by the Adjudicating Authority and being aggrieved of those thirteen orders, 13 (thirteen) appeals were filed before the Collector (Appeals). The Collector (Appeals) disposed of the same by a common order. Against that order, only one appeal was filed before the Tribunal. In those circumstances, The Tribunal held as follows :- Accordingly, we hold that where Collector (Appeals) disposes of a number of appeals by a common order the appellants should file as many appeals as numbers of orders-in-original and the mere fact that a common order has been passed by the Collector (Appeals) cannot be a ground in filing a single appeal. But in this case, the facts are different. There is only one common order and only one order number is given in disposing of 36 show cause notices. Therefore, 36 show cause notices were disposed of by giving one order number and the issue involved in all the thirty-six show cause notices is the same. In those circumstances, the decision of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument adopted by the South Regional Bench, I would like to take another situation which may arise. It may be that a Central Excise Officer may issue one show cause notice for each removal of Central Excise goods from the factory of a Central Excise assessee, even though the issue involved in each removal or contravention involved may be the same. It would, therefore, depend upon the whim and fancy of an Excise Officer whether one show cause notice should be issued against all the removals or separate show cause notices should be issued against each removal of excisable goods. In that case, the argument could be stretched that strictly in law since there was nothing legally wrong for the Central Excise Officer to issue the show cause notice for each removal of Central Excise goods, therefore, there could be as many show cause notices, consequently as many Orders-in-Original, and ultimately as many Orders-in-Appeal by the lower appellate authority. The whole argument, in my view, would be highly impracticable. In such a situation, it would be desirable, as already stated, that we should strictly go as per letter of law as provided under Section 35A (applicable to appeals before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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