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PETITIONER: COLLECTOR OF CENTRAL EXCISE, CALCUTFA

       Vs.

RESPONDENT: BERGER PAINTS INDIA LTD.

DATE OF JUDGMENT19/03/1990

BENCH: MUKHARJI, SABYASACHI (CJ) BENCH: MUKHARJI, SABYASACHI (CJ) PUNCHHI, M.M.

CITATION:  1990 AIR 1276            1990 SCR  (1)1027  1990 SCC  (2) 349        JT 1990 (3)   133  1990 SCALE  (1)35

ACT:     Customs,  Excise and Gold (Control)  Appellate  Tribunal (Procedure) Rules, 1982: Rule 9(2)--Customs, Excise and Gold (Control) Appellate Tribunal--Appeal--Documents to accompany Memorandum  of  Appeal--Appeal  filed  pursuant  to  general authority  given by Collector and order passed by  Collector (in  office  note-sheet) without referring to  any  specific officer--Whether    appeal   filed   in   compliance    with Rules--Purpose of the Rule explained.

HEADNOTE:     Rule  9(2)  of the Customs, Excise  and  Gold  (Control) Appellate Tribunal (Procedure) Rules, 1982 provides that  an appeal  filed  under the direction of the Collector  or  the Administrator  shall be accompanied by an attested  copy  of the  order containing such direction. Pursuant to a  general authority  and an order of the Collector (on the file  note- sheet)  the  appellant filed an appeal before  the  Customs, Excise and Gold (Control) Appellate Tribunal which dismissed it  by holding that it was not in consonance with Rule  (2). Hence this appeal by the Revenue.     Setting  aside the order of the Tribunal  and  disposing the appeal, this Court,     HELD:  1.  Having  regard to the purpose  of  the  rules namely,  to ensure that there was an application of mind  to the  points in respect of which the question for  filing  an appeal arose and that the appeal was duly authorised by  the Collector,  and  was filed by the person authorised  by  the Collector in order to ensure that frivolous and  unnecessary appeals  are not filed, it must be held that in the  present context  and in view of the terms of the rules and the  pur- pose intended to be served, the appeal was competent and was duly  filed in compliance with the procedure as enjoined  by the  rules. The rules were to carry out the purposes of  the Act. Therefore, the Tribunal was in error in dismissing  the appeal. [1030D-F, G]     2. The matter is remanded to the Tribunal for considera- tion of the Appeal on merits. [1030H] 1028

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JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  4447-48 of 1988.     From  the  Judgment and Order dated 10.11. 1987  of  the Customs  Excise and Gold (Control) Appellate  Tribunal,  New Delhi in Appeal No. E/Stay/No. 45/87-A & E/Appeal No. 188 of 1987-A. (Order No. 681 & 682 of 1987-A.     Soli J. Sorabjee, Attorney General, Ms. Nisha Bagchi and Mrs. Sushma Suri for the Appellant. Debi Pal and P.K. Chakraborty for the Respondent. The Judgment of the Court was delivered by     SABYASACHI MUKHARJI, CJ. This is an appeal under section 35L(b) of the Central Excises & Salt Act, 1944  (hereinafter called  ’the Act’). The appeal by the appellant  before  the tribunal was dismissed on the ground that provisions of rule 9(2)  of  the Customs, Excise and Gold  (Control)  Appellate Tribunal (Procedure) Rules, 1982 had not been complied with. The  documents  which  are to accompany  the  memorandum  of appeal  are  prescribed by rule 9 of the  said  rules  which provides as follows: "9(1)  Every memorandum of appeal shall be filed in  quadru- plicate  and shall be accompanied by four copies  (at  least one  of  which shall be a certified copy) of the  order  ap- pealed  against and where such order is an order  passed  in appeal or revision, four copies (at least one of which shall be a certified copy) of the order appealed against and where such  order is an order passed in appeal or  revision,  four copies  (at  least one of which shall be a  certified  copy) also of the order of the adjudicating authority. (2) In an appeal filed under the direction of the  Collector or the Administrator, the memorandum of appeal shall also be accompanied by an attested copy of the order containing such direction."     The tribunal was of the opinion that the purpose and the spirit of rule 9(2) aforesaid was to ensure that the  appeal was  authorised by the collector to be filed. Our  attention was  drawn to the authority in the instant case,  which  was annexed to the further affidavit filed in these proceedings. The  said authority dated 24th September, 1986 read as  fol- lows: 1029 "I hereby authorise Assistant Collector (Tribunal &  Review, Collectorate  of Central Excise, Calcutta-II,  Calcutta,  to act  on my behalf in the matter of filing  appeal/  applica- tions/cross-objections/statement  of  reference  before  the Customs, Excise & Gold (Control) Appellate  Tribunal/Collec- tor (Appeals) in terms of Section 35B(2) and 35B(4), 35B(5), 35E(2),  35E(4), 35G(1) and 35G(2) of the Central Excises  & Salt Act, 1944 and Section 81(3), 81(5), 81(6), 82(2), 82(4) and 823(1) & 823(2) of Gold (Control) Act, 1968."     Pursuant to this authority the appeal was filed, and our attention was also drawn to the orders passed by the Collec- tor in respect of this specific appeal. The relevant portion of  the  same may be noted from the Order  sheet.  The  note dated 4th December, 1986 reads as follows: "Under  the  O/A date 14.8.86 as  at  page--19/C,  Collector (Appeals)  has  set aside the O/O) of  the  Divisional  A.C. (Vide  P- 197/C of linked file marked F/A). In the O/O)  the AC,  CE, Howrah, South Division has disallowed  abetment  on account of I) Special Rebate on Addl. Trade Discount and  2) cost  of secondary packing purported to be used for  protec- tion and to facilitate transportation for reasons stated  in detail in the adjudication order. Collector  (Appeals)  has, however, allowed  the  assessee’s

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appeal  on  the  ground that arguments put  forward  by  the Asstt.  Collector for disallowing the party’s claim  as  not tenable. In  view  of Supreme Court’s Judgment dated 7.10.83  in  the case of M/s. Bombay Tyre International v. U.O.I. and  clari- ficatory  Order  date 14/15.11.83, it appears that  the  O/A passed  by the Collector (Appeals) is not legal  and  proper and appeal to CEGAT against the same may be considered.  The arguments advanced by the Asstt. Collector in her O/O  dated 28.2.86  (pages 16 1-197/C of linked file)  portions  marked ’X’ & ’Y’ at Pages 17 1-173 & 163-165/ C of linked file  may very well form our grounds of appeal as well. Submitted for consideration please." 1030     Thereafter,  it  appears that the Collector  desired  to have  a look on the judgment in Godfrey Philip’s  case,  and following are the orders noted by the Collector: "Godfrey  Philips Judgment of the Supreme Court may  be  pe- rused in ELT placed below. (P=306 of Oct. 1985 issue)." "Seen the judgment. This judgment covers a different materi- al namely cigarette. For a classification from CEGAT. We can appeal on this issue. However, Collector may kindly see  the side linked portions of page 323 of the book. ’ ’     The  tribunal was of the opinion that there was  nothing in  the rules to justify acceptance of the kind  of  general authorisation  or  the  notesheet  orders  which  authorised filing of appeal without referring to a specified officer as being in consonance with rule 9(2) of the said rules.     Having  regard to the purpose of these rules as we  con- ceive it, namely, to ensure that there was an application of mind  to  the points in respect of which  the  question  for filing  an appeal arose and that the appeal was duly  autho- rised  by the Collector, and was filed by the person  autho- rised by the Collector in order to ensure that frivolous and unnecessary  appeals  are not filed, we are of  the  opinion that in the present context and in view of the terms of  the rules and the purpose intended to be served, the appeal  was competent  and was duly filed in compliance with the  proce- dure  as enjoined by the rules. It has to be borne  in  mind that the rules framed therein were to carry out the purposes of the Act. By reading the rules in the manner canvassed  by Dr.  Pal,  counsel for the respondent, before us  which  had prevailed  over the tribunal, in our opinion,  would  defeat the  purposes  of the rules. The language  of  the  relevant Section  and  the rules as we have noticed, do  not  warrant such a strained construction.     In the aforesaid view of the matter we are of the  opin- ion that the tribunal was in error in dismissing the  appeal on the ground that it did. In the premises, the judgment and order  of the tribunal cannot be sustained.  We  accordingly set aside the judgment and order of the tribunal dated  10th November, 1987. In as much as, however, the tribunal has not disposed  of the appeal on merits, we remand the  matter  to the  tribunal for consideration of the appeal on merits  and in accordance with law. The appeal herein is disposed of  as aforesaid. T.N.A.                                          Appeal  dis- posed of. 1031