1. When these stay applications came for hearing on 9.12.1988, Shri B.K. Gupta, learned S.D.R., raised a preliminary objection that the appeals had not been signed by the Principal Officer of the Company in accordance with the Central Excise (Appeals) Rules, 1982. Shri D.N.Mehta, learned Advocate for the appellant-applicants wanted to argue on the preliminary objection and the matters were adjourned to 13.1.1989.
On 13.1.1989, when the matters were called, Shri Mehta made a request for adjournment on the ground that he wanted time to rectify the defect as was observed on 9.12.1988. The matters were, therefore, adjourned to 16.2.1989. On 16.2.1989, Shri Mehta stated that the appellant-applicants had rectified the defect by filing fresh appeals duly signed by the Vice-President (Finance) of the Company and the same were presented in the registry on 9.2.1989. Shri Gupta raised a preliminary objection stating that earlier, appeals filed by the appellant-applicants being defective, should be dismissed and the present appeals should be taken on record after condoning the delay, if there is any prayer for condonation of delay and if the Bench is inclined to do so. Shri Mehta stated that he would like to contest the preliminary objec- tion of the learned S.D.R. These matters were, therefore, adjourned to 24.2.1989 for ar-guments on the preliminary objection.
2. We have heard Shri Mehta for the appellant-applicants and Shri Gupta for the respondent on the preliminary objection. Shri Gupta has argued that the appeals filed earlier were not valid appeals. The second set of appeals filed on 9.2.1989 is time-barred, as the impugned order was communmicated to the appellant-applicants on 30.5.1988. The first set of the appeals was not rectifiable. There was no signature of an authorised person on those appeals as required under Section 35-B(6) of the Central Excises and Salt Act. In support of his argument, he has relied on this Tribunal's Orders No. S. 179-180/88-D dated 2.12.1988.
3. Arguing for the appellant-applicants Shri Mehta has drawn our attention to the appeals filed on 9.2.1989, duly signed and verified by Shri M.P. Chowdhary, Vice-President (Finance) of the appellant-company.
He has orally prayed that rectification of the defect which was found in the appeals earlier filed, as is now done by filing fresh set of appeals duly signed by the Vice-President (Finance), may be allowed by the Tribunal. He has argued that the defect in the first set of appeals was a procedural defect. He has stated that procedural defects are rectifiable. By filing the first set of appeals, the appellant-applicants made substantial compliance of the requirement of filing appeals within the statutory time limit. The submission of the second set of appeals should date back to the filing of the first set of the appeals. Considered from this angle, there is no delay in filing the appeals and no application for condonation of delay is necessary.
In support of his arguments, Shri Mehta has relied on the following decisions :- (i) AIR 1977 Supreme Court 2221 - Bikram Dass v. Financial Commissioner & Ors.Government Woollen Mills, Srinagar v. Collector of Central Excise, Chandigarh.Steel Works Pvt. Ltd. v. Collector ofCentral Excise, Chandigarh. (iv) 1985 (21) ELT 713 (Tribunal) - Indian Oil Corporation Ltd., Haldia Refinery v. Collector of Central Excise, Calcutta.I.T.C. Limited, Madras v. Collector of Central Excise, Madras.Collector of Customs & Central Excise, Chandigarh and Ors., v. Hind Afghan Co., Delhi and Ors.
4. We have considered the arguments of both sides and have also gone through the records of the case. The original appeals which were signed by the Accounts Officer of the appellant-company were filed in this Tribunal on 25.8.1988 and 29.8.1988 respectively, i.e., within the time-limit of three months commencing from the date of communication of the impugned order on 30.5.1988. The Accounts Officer was not the principal officer of the appellant-company and hence, the appeals filed over his signatures were defective. Fresh appeals have now been filed duly signed by the Vice-President (Finance) of the appellant-company.
The learned Advocate for the appellant-applicants has made an oral prayer during the hearing before us that rectification of the defect sought to be done by the appellant-applicants by filing the second set of appeals duly signed by the principal officer of the company, may be allowed by the Tribunal. Sub-section (6) of Section 35-B provides that appeals to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner. Rule 216(3) of the Central Excise Rules, 1982 provides that an appeal under Sub-section (1) of Section 35-B and the form of verification as contained in Form EA-3 shall be signed by the person specified in Sub-rule (2) of Rule 213 ibid. Sub-rule 2(c) of Rule 213 ibid lays down that in case of a Company, the appeal shall be signed by the principal officer thereof.
It is not disputed that the Vice-President (Finance) is the principal officer of the appellant-company. We are of the view that Sub-section (6) of Section 35-B of the Central Excises and Salt Act is a procedural provision. According to the ratio of the judgment of the Hon'ble Supreme Court, reported in AIR 1977 Supreme Court 2221, the procedural defects are rectifiable. In the said case, the appeal was presented within 30 days, which was the period of limitation for filing a Letters Patent Appeal.' There was, however, an irregularity in presenting the appeal, namely, that the appeal was accompanied by only one set of the three items mentioned in Rule 3 of Chapter 2-C of the Civil Procedure Code which requires that three sets should be filed. The Hon'ble Supreme Court held that Rule 3 being directory in nature, substantial compliance therewith was enough to meet its requirements. It was held that there was substantial compliance with the rule and therefore, it was erroneous to treat the appeal as being barred by limitation. In the case, reported in 1985 (21) ELT 462, the Memo of Appeal, filed before this Tribunal, was not signed by the principal officer. It was held by this Tribunal that the said defect could be cured. In the case, reported in 1988 (38) ELT 330 (Tribunal), the appeal before the Collector (Appeals) was not filed properly; it was held by the Tribunal that the defect was a procedural one. In the case of I.T.C. Limited, Madras v. Collector of Central Excise, Madras [1986 (25) ELT 437 (Tribunal)], the memo of appeal was not signed by the principal officer and the Tribunal condoned the defect considering the facts and circumstances of the case. In the case reported in 1986 (23) ELT 270 (Tribunal), the appeal was filed without verification and subsequently the defect was rectified. It was held by the Tribunal that the appeal ran from the date of the filing and not from the date of rectification.
Having due regard to the aforesaid decisions and considering the facts and circumstances of the present case, we hold that the defect found in the original set of appeals filed by the appellant-applicants is rectifiable, and we allow the rectification done by them by filing the second set of appeals duly signed by the principal officer of the company. In view of this finding, no delay in filing the appeals is involved and hence, no application for condonation of delay is required.
5. The preliminary objection raised by the learned S.D.R. is disposed of in the above terms.