9911796707
TMI Blog2007 (7) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... Bagaria, Sr. Advocate along with Partha Banerjee, Advocate and Dr. Samir Chakraborty, Sr. Advocate along with Abhijit Biswas, K.P. Dey, Advocates, for the Respondent. [Order per: D.N, Panda, Member (J). - This batch of appeals involves the common question of law relating to maintainability for which all such appeals are heard analogous on such issue. Appeal No. EDM-394/03 was earlier heard on 20-3-07. Appeal No. CDM-61/03 was earlier heard on 27-3-07. These cases were listed again today along with other similar appeals to hear on the preliminiary question as to whether prior to the amendment made in 2005 to Section 35B(2) of Central Excise Act, 1944 and similar provision under the Customs Act, 1962, the Commissioner himself can file appeals 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inting Mills and Others and vice versa - 2007 (78) RLT 438 (CESTAT-Mum.). He also cites that between the last date of hearing and now, the Single Member Bench at New Delhi has referred the matter to a Larger Bench as the said Bench has found that the decision in the case of Shree Ganesh Dyeing (cited supra) is in conflict with the earlier decision of the Tribunal in the case of C.C.Ex, New Delhi v. Kay Iron Works (P) Ltd. - 1998 (99) E.L.T. 462 (Tribunal). He also states that the taxing statutes are required to be construed very strictly and the procedure for filing the appeal in the statute is to be strictly followed and the Commissioner cannot bypass the procedure of authorising Central Excise Officer himself to file an appeal. In this 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower, the procedure for authorising some one to file the appeal is a procedural requirement and if the same is strictly followed as prescribed under the statute, the substantive right to file the appeal cannot be taken away. Dr. Chakraborty, learned Counsel, however, was of the diametrically opposite view. According to him, as stated above, all the provisions in taxing statute should be strictly construed and if the procedural provisions are not followed, the appeal filed contrary to the procedural requirement is not maintainable. Shri Lodha, learned Advocate refers to the Hon'ble Supreme Court's decision in the case of Hotel and Restaurant Association (cited supra) and stated that the said decision and the other decisions in the same 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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred. Right to appeal under law is a statutory right granted to both sides. Such a right cannot be denied for any procedural irregularity which otherwise would result in injustice to the aggrieved, if the appeal by that party is dismissed on the ground of technicalities at the threshold. The aggrieved would be remediless and without contrary intention in law, the Court should come forward to do justice to the party by a purposeful and rational interpretation of the statutory provision. The Appellate Courts are not powerless to direct removal of curable defect which was procedural in nature or allow an opportunity to the aggrieved without depriving that party from due process of justice to seek the remedy, exercising its right 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 M/s. Giridhari Lal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion may present themselves for judicial decisions-secondary situations. As regards these secondary situations, it may seem likely in some cases that the draftsman had them in contemplation; in others not. Where it seems likely that a secondary situation was not within the draftsman's contemplation, it will be necessary for the Court to impute an intention to Parliament in the way I have described, that is, to determine what would have been the statutory intention if the secondary situation had been within Parliamentary contemplation (a secondary intention)." Also recognizing that Harold Laski said in his Report of the Committee on Ministers' powers viewed: "The present methods of statutory interpretation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf. Order 3, Rule 4 of the Code relates to the appointment of a Pleader. Sub-rule (I) of the said Rule provides, inter alia, that no Pleader shall act for any person in any court unless he has been appointed for the purpose by such person by a document in writing signed by such person. Sub-rule (2) adds that every such appointment shall be filed in court and shall be deemed to be in force until determined with the leave of the Court in the manner indicated, by it. Technically, it may be conceded that the memorandum of appeal presented by Mr. Daundkar suffered from the infirmity that respondent No. 1 had signed his Vakalatnama in favour of the Government Pleader and Mr. Daundkar could not have accepted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
