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TMI Blog2007 (7) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Orders of the Commissioner (Appeals) or not. 2. Today when the matter was heard, Shri S.K. Bagaria, learned Senior Advocate was not present. However, he had expressed his views on the earlier date of hearing on 27-3-07. Shri C.S. Lodha, learned Advocate who was present in the court today, also gave his views on the issue at the request of the Bench, as the matter was of importance, all the advocates and consultants present during the hearing today were also invited to give their views. 3. Section 35B(2) of the Central Excise Act, 1944 prior to its amendment by Section 79 of the Finance Act, 2005 at the relevant point of time read as follows: (2) The Commissioner of Central Excise may, if he is of opinion that order passed by the Appellate Commissioner of Central Excise under Section 35, as it stood immediately before the appointed day, or the Commissioner (Appeals) under Section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order. 4. Similar provision as that was existing under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case, he cited the decision of the Hon ble Supreme Court in the case of Hotel and Restaurant Association v. Star India Pvt. Ltd. reported in 2007 (5) S.T.R. 161 (S.C.). 6. Shri N.C. Roychowdhury, learned Senior Advocate appearing for the Department in one of these cases states that according to him, since the Commissioner can authorise filing of an appeal, he himself has power to file the appeal. According to him, any one who can authorise to do an act, is not prevented to do the same by himself. He further states that the Tribunal has been all along allowing appeals filed directly by the Commissioners and in this connection, he cites the decision of the Commissioner of Customs-II, New Delhi v. Raj Kumar Madan - 2000 (119) E.L.T. 463 (Tribunal) which held that appeal having been filed by Commissioner himself, sub-section (2) of Section 129A of the Customs Act, 1962 is not attracted and recording of satisfaction of the Commissioner is also not required. Shri Roychowdhury is of the view that since the Commissioner is empowered to do all that his subordinate officers can do, the Commissioner can also file the appeal since he can authorise his subordinate officer to file such appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me line deal with the different kinds of procedures which are substantive in nature and those are required to be followed strictly in view of Hon ble Apex Court s decision. However, according to him, the procedure regarding who should be authorised to file an appeal, is not a requirement of that kind requiring strict compliance. 10.1 Heard both sides and also gone through the relevant statutory provisions. A bare perusal of the relevant provision to Section 35B(2) of the Central Excise Act, 1944 and Section 129A(2) of the Customs Act, 1962 shows that at the relevant point of time statutory right of redressal was exercisable by revenue to appeal against an Order passed by the Appellate Commissioner if such Order was found not legal or proper. Such a right exercisable by the Commissioner was conditioned by the act of drawing of opinion as to legality and propriety of the Order. Only on drawing opinion, right to file appeal becomes exercisable. The right so exercisable by the Opinion Drawing Authority was also empowered to direct any Central Excise Officer under the Excise Law or a proper officer under Customs Law to prefer appeal on behalf of Union of India represented by Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the legally acceptable manner. 10.4 At this juncture, it would be appropriate to quote the rule of interpretation of statute as held in the case of Ms/. Giridhari Lai and Sons v. Balbir Nath Mathur and Others reported in AIR 1986 SC 1499 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 the legislature, actual or imputed. Having ascertained the intention, the Court must then strive to so interpret the statute as to promote/advance the object and purpose of the enactment. For this purpose, where necessary the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be well justified in departing from the so called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing, the written word in necessary. Approving the words of Lord Denning in the case of Seaford Court Estates Ltd. v. Asher the Hon ble Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n make the task of considering the relationship of statutes, especially in the realm of great social experiments, to the social welfare they are intended to promote one in which the end involved may become unduly narrowed, either by reason of the unconscious assumptions of the judge or because he is observing the principles of interpretation devised to suit interests we are no longer concerned to protect in the same degree as formerly.... The method of interpretation should be less analytical and more functional in character, it should seek to discover the effect of the legislative precept in action so as to give full weight to the social value it is intended to secure. In 1981, the Australian Parliament added a new Section 15AA(1) to the Acts Interpretation Act, 1901, requiring that in statutory interpretation A construction that would promote the purpose of object of an Act (even if not expressed in the Act), be preferred to one that would not promote that purpose or object. Julius Stone in his Precedent And Law-Dynamics of Common Law Growth also refers to this provision. 10.5 A memorandum of appeal can be signed by the appellant or by his pleader under Code of Civil P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted it, though he was working in the Government Pleader s office as an Assistant Government 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 irrelevant in dealing with the validity of the contention raised by the appellants. If the Registry had returned the appeal to: Mr. Daundkar as irregularly presented, the irregularity could have been immediately corrected and the Government Pleader would have signed both the memo of appeal and the Vakalatnama. It is an elementary rule of justice that no party should suffer for the mistake of the court or its office. Besides, one of the rules framed by the High Court on its Appellate Side - Rule 95 seems to authorise an Advocate practising on the Appellate Side of the High Court to appear even without initially filing a Vakalatnama ..... X X X X Extracts X X X X X X X X Extracts X X X X
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