SHRIRAM RAYONS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) Having examined the records and heard both sides, I am convinced of the need to dispose of the appeal itself at this stage. Accordingly, I allow the present application and proceed to deal with the appeal.

(2.) The appeal is against Order -in - Appeal No. 215/2002, dated 21 -3 -2002 passed by the Commissioner (Appeals). As per the impugned order, the appeal preferred by the assessee to the Commissioner (Appeals) against an adverse order passed by the original authority has been dismissed as "infructuous and unmaintainable". The reason recorded for the dismissal of the appeal is that the identity of the signatory of the memorandum of appeal had not been disclosed and that the entries in Form EA. -I were not verified as required under the relevant rules of procedure. Ld. Counsel for the appellants fairly concedes that the EA -I form filed with the Commissioner (Appeals) had not been verified by the appellants and that the identity of the person who signed the memorandum of appeal had not been disclosed. He submits that, had an opportunity been given, the defect could have been cured by the appellants. According to ld. Counsel, the dismissal of the appeal without affording an opportunity to do so is violative of the principles of natural justice. He relies on the decision of this Bench in Metal Seam Company (Pvt.) Ltd. v. CCE [2002 (145) E.L.T. 440 = 2002 (49) RLT 815]. Ld. Counsel has shown me a copy of the appeal filed with the Commissioner (Appeals) as also copies of a Board Resolution and a power -of -attorney relating to institution of legal proceedings. I have perused these documents. I note that the identity of the person who signed the above appeal memorandum is not discernible from that document and further that oven the name of the signatory has not been mentioned. However, going by the general power -of -attorney dated 24 -2 -2000 read with the Board Resolution dated 29 -1 -2000, one might note that one one Sh. V.K. Jhingon was one of the functionaries of the appellant -company who were authorized for instituting or defending legal proceedings. It is submitted by the counsel that it was Sh. V.K. Jhingon who had signed the appeal papers filed with the Commissioner (Appeals) but it so happened that neither his identity nor his authority to sign the papers could be placed on record before the lower appellate authority. Ld. JDR has sought to defend the order of the Commissioner (Appeals).

(3.) The assessee's appeal has been dismissed by Commissioner (Appeals) in violation of the principles of natural justice. Had the lower appellate authority issued a notice to the appellants directing them to show cause why the appeal should not be dismissed as not maintainable, the appellant would have been able to cure whatever defects and make up whatever shortcomings and prosecute the appeal on its merits. The dismissal of the appeal had the effect of affirming the order of the original authority which was adverse to the assessee. That was a quasi -judicial action which could not have been resorted to without observing the principles of natural justice. This Bench has held to this effect in Metal Seam Company case (supra) and other similar cases. In this view of the matter, I set aside the order passed by the Commissioner (Appeals) and direct him to give the appellants a reasonable opportunity to cure whatever defects were noted in their appeal. Given such an opportunity, it shall be up to the appellants to show to the satisfaction of the Commissioner (Appeals) that the memorandum of appeal (including the EA -I form) and connected papers were signed by a person duly authorised in that behalf, as also to verify the appeal as required under the relevant rules of procedure. The present appeal stands allowed by way of remand.