PHILIPS INDIA LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) SHRI Prakash Shah, learned Advocate appearing for the appellants submits copy of authorisation dated April 1, 2002 signed by Shri R.J. Wani, Company Secretary authorising Mr. Shamsunder Ramchandra Kabir, General Manager, Indirect Taxation to represent the company before CEGAT and to sign/ verify and execute any appeal to be filed before CEGAT against the impugned order -in -appeal dated 1 -4 -2002. He also submits decision of the Tribunal in the case of I.C.I. (India) Ltd. v. C.C.B., Mumbai -VI - 1999 (114) E.L.T. 749 (Tribunal). He states that in view of the aforesaid decision of the Tribunal and the authorisation by the Company Secretary, the appeal filed by Shri S.R. Kabir, General Manager should be taken as an appeal filed on behalf of the appellants' company and duly considered by the Tribunal.

(2.) THIS case had come up for hearing earlier on 28 -11 -2002 when the learned Advocate for the appellants had raised the question as to whether the authorisation dated 29 -8 -2001 issued by the Commissioner authorising the Dy. Commissioner under Section 35E(2) of the Central Excise Act, 1944 is a valid authorisation to file an appeal before the Commissioner (Appeals) against the order of the Additional Commissioner. In this context, the question arose as to whether the appeal filed by the appellants is valid as the same was seem to have been filed by Shri S.R. Kabir, General Manager without having any power of attorney from the appellants' company. No documents were also produced such as the Memorandum of Association or Articles of Association of the appellants' company or any Resolution of the company indicating who are the authorised officers of the appellants, company to file an appeal on behalf of the appellants' company nor any documents were produced to indicate which officials on behalf of the appellants' company can authorise another person to file an appeal on behalf of the said company. The matter was adjourned to 13 -12 -2002 to enable the learned Advocate to produce a copy of the power of attorney authorising Shri S.R. Kabir to file the appeal. The learned Advocate has now produced a copy of the authorisation dated 1 -4 -2002 as stated above. It is seen from the appeal papers that the copy of the impugned order -in -appeal is dated 1 -4 -2002 with an endorsement "Received" on 8 -4 -2002. Such an endorsement indicating the date 8 -4 -2002 goes to show that the company received the impugned order only on 8 -4 -2002 which is also supported by the Appeal Memorandum as the date of communication of this impugned order -in -appeal has been indicated therein as April 8, 2002 against Column No. 3. Considering the fact that the appellants have received the impugned order only on 8 -4 -2002, it is surprising that the copy of the authorisation now produced is dated April 1, 2002 which authorises filing appeal against the impugned order which was received by the company only subsequently on 8 -4 -2002. The facts as above create a serious doubt about genuineness of the authorisation produced before this Tribunal and creates a reasonable doubt that the same is back dated as it was neither produced along with the appeal papers nor when the case came up for hearing on 28 -11 -2002. Further, no company documents have also been produced to show that the Company Secretary is vested with the powers to authorise another official of the company to file an appeal before this Tribunal. The verification signed by the said Shri S.R. Kabir, also does not bear any date of verification on the appeal memorandum. Similar defect is also found on the Vakalatnama which does not bear a date. The verification on the stay application signed by the said Shri S.R. Kabir also does not bear a date.

(3.) DECISION of the Tribunal in the case of I.C.I (India) Ltd. cited by the learned Advocate refers to the words "Principal Officer" appearing in Rule 213(2) of the erstwhile Central Excise Rules, 1944. We, however, find that this is a provision relating to filing appeal before the Commissioner (Appeals) and not before the Tribunal. Rule 8(3) of the CEGAT (Procedure) Rules, 1982 requires that every memorandum of appeal shall be signed and verified by the appellant or by the Principal Officer duly authorised to sign the memorandum of appeal. No document has been produced before us to satisfy ourselves that the said Shri S.R. Kabir is a principal officer authorised to sign the memorandum of appeal in terms of Rule 8(3) of the CEGAT (Procedure) Rules, 1982. The decision of the Tribunal in Everett (India) Pvt. Ltd. v. CCE - 1988 (33) E.L.T. 577 held that the Manager of a company is treatable as Principal Officer. 'Manager' under the Companies Act is defined as an individual who has the management of the whole, or substantially the whole, of the affairs of a company. It has not been shown to us that Shri S.R. Kabir satisfies the requirement under the said definition of 'Manager'. The appeal is also defective as not containing the date of verification and the copy of the document dated April 1, 2002 purporting to be an authorisation also appears to be back dated for the reasons stated above. In view of the foregoing, we dismiss the appeal along with the stay petition as not maintainable.