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Government Woollen Mills Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(21)ELT462TriDel
AppellantGovernment Woollen Mills
RespondentCollector of Central Excise
Excerpt:
.....(11th amendment) rules, 1982 that prescribes, by reference to r. 213(2), the persons that could sign a memorandum of appeal. rule 213(2) in its turn, speaks of the principal officer of a company (or a local authority) as the person competent to sign a memorandum of appeal. obviously, the memorandum of appeal or the application under s. 35f have not been duly signed by the principal officer of the appellant company and to that extent there is a failure to comply with the requirements of the said rule. when the rule speaks only of the principal officer of a company and not any other person duly authorised by him to sign and verify a memorandum of appeal, unlike o. 6, r. 14 of the civil procedure code, the so-called authorisation of shri d.n. tiku by the managing director of the.....
Judgment:
1. On a preliminary objection on behalf of the Respondent, to the effect that the Appeal herein was not duly signed and filed in terms of R. 213(2)(c) of the Central Excise Rules, 1944, we heard elaborate arguments from either side. In the view that the objection may sustain and by way of abundant caution, the Applicant had also filed on 8-1-1985- (a) an application under R. 11 of the Customs, Excise and Gold (Control) Appellate Tribunal Rules, 1982, for leave "to amend the Memorandum of Appeal by permitting the Appellant company to now file the accompanying memorandum of appeal duly signed and verified by the appellant together with a similarly signed stay application" or to allow the Managing Director of the appellant to sign and verify all the four sets of the appeal and stay petitions as originally filed within time on 14-6-1984 ; (b) an application for condonation of delay, in filing the fresh Memorandum of Appeal, aforesaid, in terms of S. 35B (5) of the Central Excises and Salt Act, 1944.

These applications were also concurrently heard and disposed of by this order.

(a) an appeal against the order of the Collector (Appeals) New Delhi dated 16-1-1984 (and communicated to the appellant on 15-3-1984) was filed on 14-6-1984 in the Tribunal, along with an application under S. 35F for dispensing with the deposit and stay of recovery of a sum of Rs. 1,25,859.99 p ; (b) the appeal as well as the application were signed and verified by one Shri D. N. Tiku, describing himself as an "officiating liaison officer-authorised person" ; (c) In an affidavit, by Shri D.N. Tiku, filed in support of the application, it was stated inter alia, that he was specifically authorised to sign and verify the Memorandum of appeal by the Managing Director of the appellant (Shri S.A. Wahid), in whom, by virtue of Para 38 (ii) (of the Delegation of Powers of the Managing Director), powers to sign and verify pleadings had been vested and this was in addition to the general delegation in Art. 73(7) of the Articles of Association of the appellant. A letter of authorisation in favour of Shri D.N. Tiku, duly signed by the Managing Director, was also enclosed.

3. It is rule 216(3) of the Central Excise (11th Amendment) Rules, 1982 that prescribes, by reference to R. 213(2), the persons that could sign a Memorandum of Appeal. Rule 213(2) in its turn, speaks of the principal officer of a company (or a local authority) as the person competent to sign a Memorandum of Appeal. Obviously, the Memorandum of appeal or the application under S. 35F have not been duly signed by the Principal officer of the appellant company and to that extent there is a failure to comply with the requirements of the said Rule. When the Rule speaks only of the principal officer of a company and not any other person duly authorised by him to sign and verify a Memorandum of appeal, unlike O. 6, R. 14 of the Civil Procedure Code, the so-called authorisation of Shri D.N. Tiku by the Managing Director of the Appellant is hardly of any relevance.

4. But then, the learned counsel for the Appellant invokes the discretionary power of the Tribunal to require the Appellant to make such amendments, as may be necessary, to rectify defects in the Memorandum of Appeal in terms of R. 11 of the Customs, Excise & Gold (Control) Appellate Tribunal (Procedure) Rules, 1982, and submits that the appellant may not be penalised for the mistake of the counsel [reliance upon AIR 1981 SC 1400-Rafiq and Anr. v. Munshilal-a case of a dismissal of an appeal for default of his counsel].

5. While it may be that in terms of the aforesaid R. 11 of the Tribunal (Procedure) Rules, the Tribunal, may, in its descretion, on sufficient cause being shown, accept a Memorandum of appeal which is, in any way, defective and in such cases, require the appellant to make the necessary amendments in such time as it may allow, the question arises if permitting or directing the principal officer of the appellant company to sign the Memorandum of appeal and the application, already filed, can be in the nature of an amendment in terms of the said Rule.

In other words, is a signature by the principal officer at this stage, an amendment 6. We find an answer to the aforesaid query in the decisions under O.6, R. 14 of the C.P.C. Summing up the case law, it is stated in Mulla's C.P.C. at p. 997 (Fourteenth Edition) as follows :- "The signing of plaints is merely a matter of procedure. If a plaint is not signed by the plaintiff or by a person duly authorised by him in that behalf, and the defect is discovered at any time before judgment, the Court may allow the plaintiff to amend the plaint by signing the same. If the defect is not discovered until the case comes on for hearing before an appellate Court, the appellate Court may order the amendment to be made in that Court. The appellate Court ought not to dismiss the suit or interfere with the decree of the lower Court merely because the plaint has not been signed. The omission to sign or verify a plaint is not such a defect as could affect the merits of a case or the jurisdiction of the Court : see S. 99. It can be set right even after the expiration of the period of limitation for filing the suit." 7. Again, in AIR 1962 Kerala 19, it was observed relying upon AIR 1931 All. 507 (S.B.) and AIR 1948 Mad. 369, that, in a case where the plaint was filed under the signature of one who is found not to be a recognised agent, the defect can be cured subsequently, subject, however, to the requirement that the suit must have been instituted with the knowledge and authority of the Plaintiff.

8. By analogy, we may apply the provisions of the C.P.C. and the decisions thereunder.

9. Indisputably, the Memorandum of appeal as well as the application, had been filed with the knowledge and authority of the Managing Director of the appellant-company as evidenced by the letter of authority in favour of Shri D.N. Tiku, dated 6-6-1984. It is not the contention that he is not the principal officer of the appellant-company.

10. In the premises, without going into any other submission, we are satisfied that the defect in signing the Memorandum of appeal and the application can be cured by requiring the Appellant to make the necessary amendments by getting them signed by the principal officer of the appellant-company and, we accordingly, direct the Appellant to carry out the requisite amendments within fifteen days from the receipt of this order. The Application under R. 11 is, therefore, allowed. The Application for Condonation of Delay in the premises, is infructuous and is, accordingly dismissed.


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