Commissioner of C. Ex. and Customs, Daman vs J.M. Mehta

D.A. Mehta, J.—On 12-11-2008 when these Appeals came up for hearing the Court passed the following order :

During course of hearing various errors/defects have been noticed; one of the principal error being non-swearing of the affidavit accompanying

each of the appeals and non-mentioning of the dates on which the appeal Memorandum has been signed and the affidavit being signed. Mr. Y.N.

Ravani, learned counsel appearing for the appellant in all the matters, prays for time to obtain instructions.

Registrar (Judicial) is directed to undertake an inquiry and place his report before the Court as to how the appeals have been numbered and

circulated without there being compliance with the statutory requirement of High Court Rules. The explanation shall be tendered on or before 24-

11-2008.

The matters to be listed for further hearing on 26-11-2008.

In compliance with the direction issued to Registrar (Judl.), a report dated 18-11-2008 has been placed on record for which necessary steps

are being taken by the Court independent of these proceedings in light of the request made by the learned Counsel for the Appellant.

Today, when the matters were called out, learned Counsel for the Appellants has placed on record X''erox copy of communication dated 24-

11-2008 from the Commissioner, Central Excise & Customs, HQ, Daman Commissioner-ate, Vapi addressed to the learned Counsel wherein

with reference to letter dated 22-11-2008 of the Counsel, the Commissioner has stated - ""With reference to the above, it is requested to withdraw

the appeals seeking liberty of the court to file fresh appeals in the matter"". In light of the written instructions, learned Counsel for the Appellants has

prayed to permit the Appellants to withdraw the Appeals. Accordingly, subject to what is stated hereinafter, considering that the larger interest of

exchequer may not suffer, permission is granted to withdraw the Appeals with a liberty to prefer a fresh set of Appeals in accordance with law,

subject to law of limitation.

As can be seen from the record, against consolidated order dated 11-7-2007 made by the Customs, Excise And Service Tax Appellate

Tribunal, West Zonal Bench, Ahmedabad, this group of Appeals has been preferred and in each of the Appeals various fundamental defects have

occurred rendering the Appeals invalid in law. By way of illustration the facts from Tax Appeal No. 219 of 2008 may be noted. The Appellant is

Commissioner of Central Excise & Customs, Daman. The Appeal Memorandum has been signed by the Appellant (Shri A.K. Pandey) without

appending date on which the Appeal Memorandum has been signed. A X''erox copy of page No. 17 (the last page of Appeal Memorandum) is

annexed herewith and forms part of this order. As can be seen from the typed portion relating to the date, the same being blank January, 2008 and

the place is mentioned as being Ahmedabad. While the Appeal has in fact been filed only on 12-2-2008.

The accompanying affidavit has been signed by one Shri V.M. Savanur, Assistant Commissioner of Central Excise, Valsad Division of Daman

Commissionerate and at the end it is stated - ""Solemnly affirmed at Valsad on this_______day of January ''08"". A X''erox copy of Page No. 18

(Affidavit in question) is annexed herewith and forms part of this order. The deponent states that the Affidavit is signed for and on behalf of the

Appellant herein viz. the Commissioner without specifying as to whether the said gentleman has been authorised to make the Affidavit for and on

behalf of the Appellant. The Affidavit is neither sworn before Judicial Magistrate, nor an Executive Magistrate, nor a Notary Public, nor any other

Gazetted Officer who is empowered to administer the oath. Thus the Affidavit is a mere sheet of paper without being an Affidavit as understood in

legal parlance.

Similarly at page No. 19 the Verification is again signed by Assistant Commissioner, Central Excise, Valsad and is in the same form as the

Affidavit. X''erox copy of page No. 19 is also annexed herewith (Verification) and forms part of mis order.

Thus, it is apparent that the Appeals have been filed in contravention of the statutory requirements of High Court Rules and are not valid

Appeals in the eyes of law. However, as stated here-in-before, bearing in mind the larger interest of the exchequer, the Appeals are not dismissed

as such and permission is granted to withdraw the Appeals so as to enable the Appellants to prefer fresh set of Appeals.

However, so that such serious lapses do not recur it is necessary that the same is brought to the notice of the persons higher-up in hierarchy so

as to enable them to put in place an appropriate procedural machinery, a copy of this order may be forwarded to : [i] Chief Commissioner of

Central Excise, Customs and Central Excise Building, Race Course, Near G.E.B., Vadodara, [ii] Chief Commissioner of Central Excise, 7th

Floor, Central Excise Building, B/h. Pan-jrapole, Ahmedabad, [iii] Finance Secretary, Ministry of Finance, North Block, New Delhi-110 001 for

information and necessary remedial action in this regard. The Registry shall forward the copy of this order to the aforesaid authorities and report

compliance.

The Appeals are accordingly dismissed as withdrawn. Registry to place copy of this order in all connected matters.