Customs, Excise and Gold Tribunal - Delhi
Sharda Anand vs Collector Of Customs on 8 May, 1992
Equivalent citations: 1992(62)ELT738(TRI-DEL)
ORDER S.V. Maruthi, Member (J)
1. The appeal arises out of an order of the Collector rejecting the appeal of the appellant Mrs. Sharda Anand on the ground that it was not signed by her and therefore, it is not in accordance with Rule 3 of Customs (Appeal) Rules, 1982.
2. The appellant filed a refund claim under Section 27 of the Customs Act before the Asstt. Collector which was rejected on the ground that it was premature and therefore, not maintainable. Against which the appeal before the Collector was filed.
3. From the facts narrated in the order of the Collector, it appears that the appellant Smt. Sharda Anand has not signed the appeal but it was signed by Shri S.P. Sharma, Advocate for the appellant who also does not have any vakalat/authorisation. Shri S.P. Sharma, Advocate vide his letter dated 18-5-1990 stated "I have drafted and filed the present appeal on the oral/telephonic instructions of the appellant/Smt. Sharda Anand C/o Shri R.K. Anand. Accordingly, I am filing this Memo of Appeal that I am appearing in the present appeal for and on behalf of the appellant/Smt. Sharda Anand and I shall be filing the proper vakalatnama at a later stage on receipt of the same from her".
3. When the appeal was called before the Collector, nobody appeared and therefore, the Collector proceeded on merits and dismissed the appeal on the ground that the appellant has not signed the appeal.
4. In this context, we may refer to Rule 3(2) of the Customs (Appeals) Rules, 1982 which reads as follows :
"Rule 3(2) The grounds of appeal and the form of verification as contained in Form No. C.A.-I shall be signed :-
(a) in the case of an individual, by the individual himself or where the individual is absent from India, by the individual concerned or by some person duly authorised by him in this behalf and where the individual is a minor or is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf;"
5. From a reading of Rule 3(2)(a), it is clear that in the case of an individual, the grounds of appeal should be signed by the individual or by the person duly authorised by him on behalf of the individual in case he is absent from India. The advocate in his letter states that he has signed the Memo of Appeal on the telephonic instructions and as soon as he gets the vakalatnama, he would file it. Therefore, on the date of filing of appeal, the advocate has no vakalatnama except telephonic instructions.
6. Therefore, the question is whether the appeal filed by the individual without signing is filed in accordance with Rule 3(2)(a) of the Customs (Appeals) Rules, 1982. In this context, we may refer to the judgment of Bombay High Court in All India Reporter v. Ram Chander etc. AIR 1961 Bom. 292 wherein it was held that "signing and verification of plaint are mere matters of procedure and if a plaint is not properly signed or verified but is admitted and entered in the registers of suits, it does not cease to be a plaint and the suit cannot be said to have been instituted merely because of the existence of some defects or irregularities in the matter of signing and verification of the plaint". It was also held that "it is open to the Court or to the officer of the court authorised to receive plaint to refuse to admit a plaint if it is not properly signed or properly verified." "It is open to the Court at any subsequent stage on its own initiative or upon objection being taken by the defendant to require the plaintiff to sign and verity the plaint..."
7. From the above, it appears that when the appeal was presented by the appellant without signing, it was open to the Collector to return the papers to the appellant for rectification of the defects. However, the Collector has accepted the appeal and gave a number also after registering it. Therefore, at a later stage to dismiss the appeal on the ground that the appeal was not signed by the individual, would cause injustice to the party and it is an elementary rule of justice that no party should suffer for the mistake of the court or its officers. (AIR 1966 SC 1119).
8. Andhra Pradesh High Court in N. Satyanarayan v. Y.B. Subaiah (AIR 1957 AP 172) held that presentation of an application by a pleader to whom the authority in the prescribed manner under Rule 4 of order 3 Civil Procedure Code was not given is only an irregularity which could be cured at a subsequent stage.
9. In Jammanlal v. Pannanand (AIR 1951 ALLD 451) where a postcard authorising the pleader to file the appeal is stitched to a blank sheet of paper on which the court fee labels of the requisite amount are fixed. It was held that document constitutes a valid power of attorney so as to enable the pleader to file the appeal.
9(a) We may also refer to a judgment of Supreme Court in Y. Purshudas v. Muldas (AIR 1966 SC 1119) wherein vakalatnama by the appellant was executed in favour of the Govt. pleader. However, the Memorandum of Appeal and vakalatnama were presented in the High Court by the Asstt. Govt. Pleader working in the same office. The irregularity was not noticed by the Registrar. The appeal was duly admitted and heard. The Supreme Court under the above circumstances held that technically the Memo of Appeal presented by the Asstt. Govt. Pleader suffered from the infirmity as the party signed his vakalatnama in favour of the Govt. Pleader and the Asstt. Govt. Pleader could not have accepted it though he was working in the Govt. Pleader's office. Even then, it was held that since the Memo was accepted by the office of the Registrar of the Appeal side of the High Court, treating the presentation of appeal to be proper and since the appeal was admitted in due course and finally came up for hearing before the High Court, "the failure of the Registry to invite the attention of the Asstt. Govt. Pleader to the irregularity committed in the presentation of the said appeal cannot be said to be irrelevant in dealing with the validity of the contention raised by the appellant." If the Registrar had returned the appeal to the party as irregularily presented, the irregularity could have been immediately corrected and the Govt. Pleader would have signed both the Memo of Appeal and the Vakalatnama.
10. We may also refer to a judgment of the Andhra Pradesh High Court in K. Viraswamy v. Commissioner of Income Tax (AIR 1960 AP 422) where an application for rectification of mistake was filed by an adcvocate which was rejected by the Tribunal against which a reference was filed before the High Court. The reference application was not signed by the assessee but was signed by the advocate who filed vakalat on behalf of the assessee. The fact that the assessee has not signed the vakalat was brought to the assessee by the Tribunal who later on rectified". Since the assessee signed the reference application, 37 days after the period of limitation provided under Section 66(1) the Tribunal held that it is barred by time. The High Court set aside the order of the Tribunal and held that filing of reference application by the advocate without the signature of the assessee is valid.
11. From a reading of the above, failure to sign the Memo of Grounds of Appeal is an irregularity which is curable and therefore, at the earliest opportunity the authorities should return the papers for rectifying the defects. Having not done so, the parties should not be put to injustice by dismissing their appeals.
12. As regards filing of vakalatnama, admittedly the advocate filed the appeal on the basis of telephonic instructions. The Customs (Appeals) Rules do not provide for filing of vakalatnama along with the Memo of Appeal. However, since there was no vakalatnama and since it is an irregularity, the Collector ought to have returned the appeal papers to the party as the failure to file vakalat is an irregularity which can be cured.
13. From the above, it follows that the Collector is not justified in dismissing the appeal as he ought to have returned the papers to the appellant. We, therefore, remand the matter to the Collector to dispose of the appeal in accordance with law after the appellant rectifies the defects referred to by the Collector.