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TMI Blog2017 (4) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... udan Industries Ltd. is a Company which, at the relevant time, was engaged in the business of manufacture and sale of goods like Refined Edible Oil, Vanaspati etc. A show cause notice F.No.V.15/15-145/Dem/2003-04 dated 08.02.2005 came to be issued by the third respondent, proposing to recover excise duty aggregating to Rs. 58,73,265/- on various quantities of Vanaspati cleared from the petitioner's factory during March and April, 2003, with interest and penalty. It is the case of the petitioner that it filed various replies and notes of written submission in the adjudication proceedings before the third respondent - Commissioner of Central Excise, Ahmedabad-III, and amongst other documents, also submitted affidavits of 22 dealers whose statements were recorded by the Investigating Officers. The show cause notice culminated into an Order in Original No.29/Commr/2005 dated 19.12.2005, whereby the third respondent confirmed the central excise duty demand of Rs. 54,38,208/- with interest and penalty equal to the amount of duty. Being aggrieved, the petitioner filed a substantive appeal along with a stay application before the Appellate Tribunal, Bombay. After hearing the petitioners on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments, translated statements etc. within a reasonable period of time, as per law. Consequently, the petitioner's appeal, which was filed in March, 2006 stands dismissed as non-maintainable though the appeal was not only maintainable but it was heard twice finally and orders on merits were reserved; and now the dismissal of the appeal exposes the petitioner company to recovery proceedings for the rest of the amount of duty, interest and penalty inasmuch as, dismissal of the appeal at this stage results in dismissal of the stay order made by the Appellate Tribunal as far back as 25.08.2006 and hence, this petition. 5. Mr. Paresh Dave, learned advocate for the petitioners assailed the impugned order by submitting that the dismissal of the petitioner's appeal is not a solitary instance before the Appellate Tribunal, but over a hundred such orders have been made by the Appellate Tribunal during last four to five months dismissing about three hundred or so appeals of various appellants, who had been waiting for their turn for final hearing for several years, only on the ground that all the documents shown as relied upon in the show cause notice were not filed with the appeal, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condemned unheard only on the ground that some documents filed with the appeal were illegible or in a local language, more so, when the documents had become illegible because of the long period for which the Appellate Tribunal could not decide the appeal. It was submitted that the summary dismissal of the petitioner's appeal without examining merits of the case is, therefore, wholly illegal and without jurisdiction. 5.2 It was next submitted that there is no statutory provision under the Central Excise Act, 1944 (hereinafter referred to as the "Act") and/or the Customs Act, 1962 as well as the Finance Act, 1994 laying down a condition that the appeal would be maintainable only if documents relied upon by the revenue while issuing the show cause notice were submitted with the appeal papers. Reference was made to the provisions of section 35B of the Central Excise Act under which the petitioner company filed the appeal before the Appellate Tribunal, to point out that the same nowhere lays down any such condition. It was submitted that under rule 9 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (hereinafter referred to as the "rules") the only requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, accordingly, urged that the petition deserves to be allowed by quashing and setting aside the impugned order and restoring the appeal to file with a direction to the Appellate Tribunal to decide the same on merits. 6. Opposing the appeal, Mr. Dhaval Vyas, learned Senior Standing Counsel for the respondents, invited the attention of the court to the provisions of rule 5 of rules, to submit that the same provide that the language of the Appellate Tribunal is English and that a Bench in its discretion may permit the use of Hindi in its proceedings. It was submitted that in the facts of this case, the affidavits filed by some of the witnesses as well as the statements of some of the witnesses are in Gujarati. Therefore, when the language of the Appellate Tribunal is in English and the Appellate Tribunal, in its discretion can permit use of Hindi in its proceedings, it was wholly justified in insisting upon furnishing of translations of the documents which are in the vernacular language. Reference was also made to sub-rule (7) of rule 16 of the rules, which provides that all paper books shall contain clearly legible documents duly paged, indexed and be tagged firmly. It was submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence, if necessary. 9. Sub-section (2A) of section 35 of the Act postulates that the Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed. Section 35F of the Act, as it stood at the relevant time when the appeal came to be filed, provided for "Deposit, pending appeal of duty demanded or penalty levied" and provided that where in an appeal under that Chapter, the decision or order appealed against relates to any duty demanded in respect of goods not under the control of central excise authorities or any penalty levied under the Act, the person desirous of appealing against such order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. The proviso thereto provided for dispensation of such deposit in the circumstances specified therein. Section 35F of the Act has since been amended and provides that the Tribunal or Commissioner (Appeals), as the case may be, shall not entertain any appeal unless the appellant has deposited the percentage of duty and/or penalty as laid down thereunder. Therefore, there is a mandate to depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or referred to in the orders of, the departmental authorities, which he proposes to rely upon at the hearing of the appeal. (2) The respondent may also file a paper book containing such documents as are referred to in sub-rule (1), which he proposes to rely upon at the time of hearing of the appeal, in such number of copies as of the memorandum of appeal, within one month of the service of the notice of the filing of the appeal on him, or within two weeks of the service of the paper book, whichever is later. (3) The Tribunal may, in its discretion, allow the filing of any paper book referred to in sub-rule (1) or sub-rule (2) after the expiry of the period referred to therein. (4) The Tribunal may on its own motion direct the preparation of as many copies as may be required of a paper book by and at the cost of the appellant or the respondent, containing copies of such statements, papers or documents as it may consider necessary for the proper disposal of the appeal. (5) The President may in his discretion direct by a general or special order that only such documents as may be specified by him in his order may be initially filed with the appeal; and the paper book as prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a certified copy) of the order in appeal or in revision and four copies of the order of the original authority. Sub-rule (2) of rule 11, however, does not permit the Tribunal to reject the memorandum of appeal on account of non-filing of documents other than the order appealed against if it is an original order, and in case where the order appealed against is an order in appeal, copies of such order and the order passed by the original authority. 14. Rule 16 of the rules provides that the appellant shall, along with the appeal or within one month of filing of the appeal, submit in such number of copies as of the memorandum of appeal, 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 hearing of the appeal. Sub-rule (5) of rule 16 of the rules provides that the President may in his discretion direct by a general or special order that only such documents as may be specified by him in his order may be initially filed with the appeal; and the paper book as prescribed in sub-rules (1) and (2) may be filed subsequently on receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2A) of section 35C of the Act postulates that the Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed. It cannot be gainsaid that if the appeal had been heard within the time stipulated in the statute, the problem that has arisen in the present case could have been obviated. It is only because the appeal has taken more than ten years to be decided, that the documents which were tendered at the relevant time have become illegible. Therefore, merely because the Tribunal, which has heard the appeals finally on two earlier occasions, could not render decisions at the relevant time, and on account of lapse of time the accompanying documents have become illegible, the parties cannot be penalized by dismissing their appeals, that too, on the ground of maintainability. One fails to understand as to how an appeal which was maintainable at the initial stage becomes non-maintainable at a subsequent stage without there being any change in the statutory provisions. It has been pointed out that, this is not a singular case in which the Tribunal has dismissed the appeal at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers on the file of, or referred to in the orders of, the departmental authorities, which he places reliance upon and not all the documents, statements of witnesses and other papers on the file of, or referred to in the orders of, the departmental authorities. Therefore, the Tribunal is not justified in insisting upon the submission of all the documents relied upon while issuing the show cause notice. However, in a given case, if during the course of hearing the Tribunal, upon application of mind, finds it necessary to examine a document which has not been placed on record, it is not precluded from calling upon the parties to produce the same. 19. The learned advocate for the petitioners has submitted that before the matters reached the Tribunal, they would have travelled before the adjudicating authority and then before the Commissioner (Appeals), who too, are not conversant with the vernacular language. Therefore, in cases where the lower authorities have not thought it fit to call for the translations of such statements, there is no warrant for the Tribunal to demand the same without examining the necessity of furnishing such translations. It was pointed out that the orderin- or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise of the documents filed by the appellant. The Tribunal is, therefore, not justified in dismissing appeals on the ground of maintainability merely because the Authorised Representative submitted that the relied upon documents were not submitted by the appellant. 21. The learned advocate for the petitioners has also drawn the attention of the court to the fact that the regular Division Bench of the Tribunal is not available as there is only a Single Member at Ahmedabad and that a Division Bench is constituted only when a Member from another Bench is deputed to the Bench at Ahmedabad. It was submitted that in these circumstances, even if the documents are filed by the appellants in terms of the impugned orders passed by the Tribunal, the appeals would not stand revived till a Division Bench is available. In the meanwhile, the revenue may proceed to recover the demands under the orders-in-original or the orders which are subject matters of challenge before the Tribunal, which would act to the miseries of the assesses. 22. In the other orders passed by the Tribunal which have been annexed along with the petition, the Tribunal has given opportunity to the appellants therein to rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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