MADHUSUDAN INDUSTRIES LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) Mr. Paresh Dave, learned advocate for the petitioners, has invited the attention of the court to the impugned order to point out that the Tribunal has dismissed the appeal as not maintainable in view of the fact that the documents annexed with the memorandum of appeal are not legible. The attention of the court was invited to the provisions of Section 35B of the Central Excise Act, 1944 as well as Section 35F of the said Act to point out that neither of the two provisions stipulate production of any documents along with the memorandum of appeal. Reference was made to Rule 9 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 to submit that the said provision requires that the appeal memorandum should be accompanied by four copies of the order-in-appeal or the order-in-original, as the case may be. Reference was also made to Rule 16 of the said rules to submit that the same provides that along with the appeal or within one month of filing of the appeal, the appellant shall submit a paper book containing copies of the documents, statements of witnesses and other papers on the file of, or referred to in the orders of, the departmental authorities, which he proposes to rely upon at the time of hearing of the appeal. It was submitted that therefore, the appellant was required to produce the documents on which he proposes to rely upon. It was pointed out that in the facts of the present case, at the relevant point of time, the petitioner had submitted all the relevant documents on which it proposes to rely upon. However, due to lapse of time the documents have faded. It was submitted that fading up of the documents on account of lapse of time would not tantamount to the petitioner not having produced the documents on which it places reliance. It was submitted that in any case, on account of non-production of the documents, at best, the Tribunal can draw an adverse inference but the appeal cannot be dismissed on the ground of non-maintainability.

(2.) The attention of the court was drawn of the several similar orders passed by the Tribunal to submit that in numerous cases the Tribunal has perfunctorily dismissed the appeals as not maintainable merely on the ground that certain documents or statements had not been filed with the appeal memorandum, without even giving any opportunity to the appellant to produce the same on record, despite the fact that the appeal had been pending since several years. It was urged that therefore, the Tribunal is required to be restrained from passing similar orders dismissing the appeals on account of non-maintainability merely because the certain documents are not placed or the documents have become illegible due to lapse of time.

(3.) Having regard to the submissions advanced by the learned advocate for the petitioners, and more particularly considering the contents of the impugned order, the court is of the view that the matter requires consideration. Hence, issue Rule returnable on 1-2-2017. The interim relief granted by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai vide order dated 25-8-2006 made in Application No. E/S/847/2006 in Appeal No. E/844/2006 shall continue.