Sbec Sugar Ltd. Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. heard both the sides. the misc. application is filed in the appeal which is not signed by the appellant. the application is signed by the counsel of the appellant. the registry raised the objection and issued a defect memo for rectification of mistake. the counsel insisted that matter be placed before the bench. the counsel of appellant before the registry submitted that the application filed by the counsel is a valid application. in these circumstances, the registry placed the application before the bench.2. the contention of the counsel is that the application is signed by the counsel who has a vakalatnama in his favour signed by the appellant. therefore, the application signed by the counsel is a valid application. the contention is that as per the cegat procedure rules, an application is to be signed by an authorized person. as per the counsel, vakalatnama is signed by the appellant in his favour, therefore it is a valid application. the applicant relied upon the tribunal's decision of sharda anand v. collector of customs and the decision of the hon'ble madras high court in the case of v.s.p. subramanian chettiar v. commissioner of income tax . the counsel also relied upon the decision of hon'ble supreme court in the case of byram pestonji gariwala v. union bank of india and ors. 3. the contention of counsel is that in these cases, the court held that application filed by the counsel on the basis of vakalatnama is a valid application. the learned sdr assisted the bench and submitted that there are various decisions of the tribunal in which it was specifically held that appeal and applications are to be signed and verified by the appellant. learned sdr relied upon following decisions:dinesh kumar ramdass patel v. cc (prev) mumbai .4. in this case, the appellant submitted that misc. applications signed by the advocate is a valid application. we find that as per rule 8(3) of cegat procedure rules, 1982, every memo of appeal/application/ cross objection shall be signed and verified by the appellant/ applicant/respondent or principle officer duly authorized to sign the memo of appeal / application/ cross objection. this rule specifically provides that appeal/ application/ cross objection are to be signed and verified by the appellant/applicant.5. we have gone through the decisions relied upon the counsel of the appellant. in the case of sharda anand (supra) the tribunal after going through the provisions of rules had held that in case the appeal/ application is not signed by the appellant/ applicant, it should not be dismissed as such. it is rectifiable defect. therefore, if the defect is rectified subsequently, the same should be treated as valid appeal / application. the issue before the tribunal was whether the non filing of vakalatnama is rectifiable mistake or not. the tribunal held that failure to sign memo of grounds of appeal by party and non-filing of authorization a curable irregularity. in the case of v.s.p. subramanian chettiar v. commissioner of income tax (supra), the issue before the hon'ble high court of madras was whether the subsequent application filed by the assessee is time barred when the first application filed by the appellant was within the period of normal period of limitation.the hon'ble high court had held that subsequent application filed by the assessee is not held to be time barred. in the case of byram pestonji gariwala, the issue before the hon'ble supreme court was whether the compromise entered by the counsel is a valid compromise. in the case of uday shanker triyar (supra), the issue before the hon'ble supreme court was whether the pleader or appellant would sign memo of appeal in which pleader signing memo of appeal had appeared for the party before the lower court whether he was required to file a fresh vakalatnama or not.6. we find that on the contrary the tribunal in the decisions relied upon by the learned sdr, there is specific issue and findings regarding whether the memo of appeal or application is to be signed by the applicant / appellant and as per the cegat procedure rules the tribunal held that it should be signed and verified by the applicant / appellant. in view of the above, we find no merit in the contention of the counsel of the appellant. the appellant if so advised can rectify the defect as pointed out by the registry within a period of four weeks.

Judgment:
1. Heard both the sides. The Misc. Application is filed in the appeal which is not signed by the appellant. The application is signed by the Counsel of the appellant. The Registry raised the objection and issued a defect memo for rectification of mistake. The counsel insisted that matter be placed before the Bench. The counsel of appellant before the Registry submitted that the application filed by the Counsel is a valid application. In these circumstances, the registry placed the application before the Bench.

2. The contention of the Counsel is that the application is signed by the Counsel who has a vakalatnama in his favour signed by the appellant. Therefore, the application signed by the Counsel is a valid application. The contention is that as per the CEGAT Procedure Rules, an application is to be signed by an authorized person. As per the Counsel, vakalatnama is signed by the appellant in his favour, therefore it is a valid application. The applicant relied upon the Tribunal's decision of Sharda Anand v. Collector of Customs and the decision of the Hon'ble Madras High Court in the case of V.S.P. Subramanian Chettiar v. Commissioner of Income Tax . The Counsel also relied upon the decision of Hon'ble Supreme Court in the case of Byram Pestonji Gariwala v. Union Bank of India and Ors.

3. The contention of Counsel is that in these cases, the Court held that application filed by the Counsel on the basis of vakalatnama is a valid application. The Learned SDR assisted the Bench and submitted that there are various decisions of the Tribunal in which it was specifically held that appeal and applications are to be signed and verified by the appellant. Learned SDR relied upon following decisions:Dinesh Kumar Ramdass Patel v. CC (Prev) Mumbai .

4. In this case, the appellant submitted that Misc. applications signed by the Advocate is a valid application. We find that as per Rule 8(3) of CEGAT Procedure Rules, 1982, every memo of appeal/application/ Cross Objection shall be signed and verified by the appellant/ applicant/respondent or Principle Officer duly authorized to sign the memo of Appeal / Application/ Cross objection. This Rule specifically provides that Appeal/ Application/ Cross Objection are to be signed and verified by the appellant/applicant.

5. We have gone through the decisions relied upon the counsel of the appellant. In the case of Sharda Anand (Supra) the Tribunal after going through the provisions of Rules had held that in case the appeal/ application is not signed by the appellant/ applicant, it should not be dismissed as such. It is rectifiable defect. Therefore, if the defect is rectified subsequently, the same should be treated as valid appeal / application. The issue before the Tribunal was whether the non filing of vakalatnama is rectifiable mistake or not. The Tribunal held that failure to sign memo of grounds of appeal by party and non-filing of authorization a curable irregularity. In the case of V.S.P. Subramanian Chettiar v. Commissioner of Income Tax (supra), the issue before the Hon'ble High Court of Madras was whether the subsequent application filed by the assessee is time barred when the first application filed by the appellant was within the period of normal period of limitation.

The Hon'ble High Court had held that subsequent application filed by the assessee is not held to be time barred. In the case of Byram Pestonji Gariwala, the issue before the Hon'ble Supreme Court was whether the compromise entered by the Counsel is a valid compromise. In the case of Uday Shanker Triyar (supra), the issue before the Hon'ble Supreme Court was whether the pleader or appellant would sign memo of appeal in which pleader signing memo of appeal had appeared for the party before the lower Court whether he was required to file a fresh vakalatnama or not.

6. We find that on the contrary the Tribunal in the decisions relied upon by the Learned SDR, there is specific issue and findings regarding whether the memo of appeal or application is to be signed by the applicant / appellant and as per the CEGAT Procedure Rules The Tribunal held that it should be signed and verified by the applicant / appellant. In view of the above, we find no merit in the contention of the Counsel of the appellant. The appellant if so advised can rectify the defect as pointed out by the Registry within a period of four weeks.