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Everett (India) Pvt. Ltd. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1988)(33)ELT577Tri(Kol.)kata
AppellantEverett (India) Pvt. Ltd.
RespondentCollector of Customs
Excerpt:
.....the case. he has pleaded that since he is conversant with the facts of the case his authority to sign appeals is fully covered by the provisions of order no. xxix, rule 1. he has also placed his reliance on order vi, rule 14 of the code of civil procedure, 1908. rule 14 of order vi is reproduced below : "14. pleading to be signed - every pleading shall be signed by the party and his pleader (if any) : provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf." he has submitted that he has signed the memorandum of appeal by virtue of his official position and he was fully authorised to sign the same by the director of the.....
Judgment:
1. M/s. Everett (India) Pvt. Ltd., Calcutta has filed an appeal being aggrieved from the Order No. Cal-Cus-1838/30/1982, dated 15.7.1982 passed by the Collector (Appeals), Calcutta.

2. Before the commencement of the proceedings Shri A.K. Chatterjee, Junior Departmental Representative has raised a preliminary objection that the appeal is hit by limitation as the appellant does not get the benefit of the Customs, Central Excise & Gold (Control) Removal of Difficulties Order, 1982 dated the 11th October, 1982 vide GSR 593E. He has also relied on Sub-section 3 of Section 50 of the Finance (No. 2) Act, 1980. He has submitted that since the Order-in-Appeal No.Cal-Cus-1838/30/1982 dated 15.7.1982 was served on the appellant after the appointed date viz., the 15th day of December, 1982 the appellant did not get six months time. The appeal has to be filed within 3 months from the date of communication of the order even though the same was passed by the Collector (Appeals) before the appointed date i.e. the 11th day of October, 1982. I have decided this issue in a consolidated order passed in Appeal Nos. CD(CAL)-186/83, CD(CAL)-203/83 and CD(CAL)206/ 83 and have given the finding that the appellant got six months time from the date of communication of the order even after the appointed date i.e. the 11th day of October, 1982. I have also given this finding in Appeal No. CD(CAL)-160/83 and Appeal No.CD(CAL)-162-164/83 vide order dated the 15th November, 1983.

3. In view of the above finding I hold that the appellant -has filed the appeal within the time and the appeal is not hit by limitation.

4. Shri K.H. Jani who has appeared on behalf of the appellant has submitted before me that he had appeard in Appeal No. CD(CAL)-187/83 of the appellant and had conceded before this Court that he is not the principal officer of the Company. He had a mistaken belief that no resolution to this effect has been passed under the Company Act. He has submitted that it was an honest belief that a bonafide mistake on his part and even now he sticks to his argument to the extent that no resolution to the effect that he is the principal officer has been passed and by virtue of his official position as Claims Manager of the Company he is authorised to sign the Memorandum of Appeal and to appear on behalf of the appellant. He has further submitted that he has conceded before this Court that he is not the principal officer of the Company and it does not amount to estoppel and he has argued on merits that he is fully authorised to sign the appeal. He has submitted that principal officer has not been defined in the Customs Act or the Customs Rules. He has also submitted that the principal officer has not also been defined in the Companies Act. He has placed his reliance on Order XXIX, Rule 1. The same is reproduced below : "1. Subscription and verification of pleading - In suits by or against a corporation, any pleading may be signed and verified on behalf of corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case." He has further pleaded that as Claims Manager he is supposed to look after all the matters regarding shipping business including Custom, matters and he is handling all the cases from the lowest stage to the highest stage and he is fully conversant with the affairs and working of the Company and also fully conversant of the facts of the case. He has pleaded that since he is conversant with the facts of the case his authority to sign appeals is fully covered by the provisions of Order No. XXIX, Rule 1. He has also placed his reliance on Order VI, Rule 14 of the Code of Civil Procedure, 1908. Rule 14 of Order VI is reproduced below : "14. Pleading to be signed - Every pleading shall be signed by the party and his pleader (if any) : Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf." He has submitted that he has signed the Memorandum of Appeal by virtue of his official position and he was fully authorised to sign the same by the Director of the Company. He has also filed an attested copy of Power of Attorney of the Director. Para Nos. 15 & 19 of the same are reproduced below : "15. To sign and execute plaints, written statements, petitions, affidavits and other pleadings in the name of the Company or otherwise as may be requisite." 19. To appoint a substitute or substitutes and delegate to him or them any of the aforesaid powers, and the same at pleasure or remove and another or others to appoint instead, after obtaining prior consent of the Managing Director of the Company for that purpose." He has also resorted to the provisions of Income Tax Act, 1961 where the principal officer has been defined in Section 2, Sub-section 35 of the Income Tax Act, 1961. The same is reproduced below :- "(35) "principal officer", used with reference to a local authority or a company or any other public body or any association of persons or any body of individuals, means - (a) the secretary, treasurer, manager or agent of the authority, company, association or body, or (b) any person connected with the management or administration of the local authority, company, association or body upon whom the Income Tax Officer has served a notice of his intention of treating him as the principal officer thereof;" He has submitted that as Manager he is fully authorised to sign the Memorandum of Appeal and as such the appeals signed and filed by him are in order and the same should be accepted. He has made an alternative plea that in case the appellant's prayer as to his acceptance as principal officer for signature of the appeals, is not accepted, an opportunity should be given to the appellant to rectify the defect. He has relied on the judgment in the case of Daya Bhai v.Babaji, AIR 1953 - Bombay 28. He has stated that Hon'ble Mr. Justice M.C. Chagla had held that signature of a person not authorised in a petition may be set right by amendment irrespective of bar of limitation. On merits Shri K.H. Jani has argued that an ex-parte survey was held on the back of the appellant and in view of Public Notice No.132 and the judgment of the Calcutta High Court in the matter No. 1561 of 1981 in the case of Everett (India) Pvt. Ltd. v. Assistant Collector of Customs and Anr., the appellant's case is covered and the facts of the appellant's case are the same and the appellant should get benefit of the Calcutta High Court judgment and this Court has also held the same view in a number of cases decided on this case. He has also cited the judgment in Appeal No. CD(T) (CAL)-1/83 of this Court. He has submitted that in view of these judgments the penalty order imposing penalty of Rs. 7,490/- should be quashed.

5. In reply the learned Departmental Representative, Shri A.K.Chatterjee concedes that in view of the Calcutta High Court judgment and earlier judgment of this Court he has no case and the appellant's appeal should be accepted subject to the same being within the limitation.

6. After hearing both the sides and the appellant's learned representative, Shri K.H. Jani's earlier statement in this Court in Appeal No. CD(CAL)-187/83, I hold that this does not amount to an estoppel. He has stated before this "Court with the mistaken belief that one can become a principal officer only if a resolution to this effect is passed. In view of the legal position cited by him I also hold that he is authorised to sign the appeals on behalf of the Company being Manager and he can be treated his principal officer. The Bombay Bench of the CEGAT had passed a judgment in Misc. Petition No.CD(BOMBAY) Appeal No. 19 of 1983 in the case of Mackinnon Mackenzie & Co. v. Collector of Customs, 1983 (14) ELT 1941 (CEGAT). However, an officer has been defined in Sub-section 30 of Section 2 of the Company Act. According to this definition an officer includes inter-alia a manager of the Company. Thus the appeal filed by the appellant and signed by Shri K.H. Jani as Claims Manager of the appellant company, is in order.

7. Now coming to the merit of the case as per argument of the learned authorised representative on behalf of the appellant I hold that the appellant's case is fully covered by the Calcutta High Court judgment in Matter No. 1561 of 1981 in the case of Everett (India) Pvt. Ltd. The facts are the same and earlier judgment of this court also fully covers the case of the appellant. The appellant's appeal is accepted. The revenue is directed to refund the penalty of Rs. 7,490/- if paid by the appellant within two months from the date of this order. For statistical purposes the appeal is allowed.


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