2008 (7) TMI 36 - AT - Central Excise

Tribunal emphasizes accuracy in document correction, affidavit verification, and review process

The Tribunal allowed the correction of a typographical error in a miscellaneous application, emphasizing accuracy in documentation. It deemed an affidavit ... Correction of typographical error in tribunal order - verification of affidavit and admissibility of affidavit evidence - inadmissibility of unsigned and unauthenticated annexures - powers of appellate tribunal to act as a civil court and summon evidence - public orders to be judged by reasons stated therein - personal appearance and oral deposition before the tribunal - condonation of delay in filing appeal where institutional delay requires explanationCorrection of typographical error in tribunal order - Typographical error in earlier Misc. Order corrected to read 'December, 2006' in place of 'December, 2005'. - HELD THAT: - The Miscellaneous Application No. 237/08 filed by the Commissioner for correction of a typographical error in MA(COD) No. 280/07 was allowed. The Tribunal corrected the reference in its earlier Misc. Order No. M-174/KOL/08 dated 9-6-08 so that the month stated therein reads as 'December, 2006'. The order is a straightforward correction of an apparent clerical mistake in the earlier order. [Paras 2]MA No. 237/08 allowed; references corrected to 'December, 2006'.Verification of affidavit and admissibility of affidavit evidence - inadmissibility of unsigned and unauthenticated annexures - The affidavit purportedly sworn by Shri B.K. Gupta is inadmissible and cannot be taken cognizance of by the Tribunal. - HELD THAT: - The affidavit filed by Shri B.K. Gupta bore an internal verification date of 2nd July 2008 while the Notary's date stamp was 3rd July 2008, indicating the affidavit was not sworn before the Notary on the stated date. The affidavit also lacked substantive depositions explaining or affirming the facts relied upon, and its annexures were unsigned and unauthenticated. In view of the principles that verification is necessary to test genuineness and responsibility for averments and that public orders must be judged by reasons stated therein, the Tribunal held that the purported affidavit could not be accepted as a valid document in the proceedings and ordered that no cognizance be taken of it. [Paras 8, 9]The purported affidavit of Shri B.K. Gupta is rejected as inadmissible; annexures not taken cognizance of.Personal appearance and oral deposition before the tribunal - powers of appellate tribunal to act as a civil court and summon evidence - Application for exemption from personal appearance by Shri B.K. Gupta is disposed of and he is directed to appear and depose personally before the Tribunal. - HELD THAT: - Misc. Application No. 238/08 filed by Shri B.K. Gupta sought exemption from personal appearance without furnishing a satisfactory reason or timeframe; the stated ground of being 'preoccupied' was unexplained. The Officer who appeared on his behalf (Deputy Secretary) admitted lack of knowledge of statutory provisions and his deposition was held to be unhelpful. Given the Tribunal's power under the Customs Act read with CPC provisions to require oral evidence and summon parties where material aspects are not satisfactorily established on record, and in view of the inadequacy of the affidavit and deputation, the Tribunal directed Shri B.K. Gupta to appear in person and depose on the next date of hearing fixed. [Paras 12, 13, 14, 15, 17]MA No. 238/08 disposed of; Shri B.K. Gupta directed to appear and depose personally before the Bench on the next date of hearing (20-8-2008).Condonation of delay in filing appeal where institutional delay requires explanation - public orders to be judged by reasons stated therein - Consideration of condonation of delay in filing the appeal is deferred pending satisfactory explanation for the delay in constituting the Chief Commissioners' Committee and the Board's review practice. - HELD THAT: - The Registry's random study showed that the Board tended to carry out reviews towards the end of the statutory period, and the Chief Commissioners' Committee was not in existence from December 2006 in the present matter. The Tribunal observed that the delay in constituting the Committee is material to the question of condonation of delay in filing the appeal and must be satisfactorily explained before the Tribunal can consider condonation. In view of the inadmissibility of the Board's affidavit and the unsatisfactory deputation evidence, the Tribunal required personal deposition by the Member and deferred any final decision on condonation until these explanations are furnished and tested. [Paras 16, 17]Decision on condonation of delay is deferred; explanation regarding delay in constituting the Committee and Board's conduct of review must be furnished and tested.Final Conclusion: The Tribunal allowed correction of a typographical error in its earlier order, refused to accept the defective affidavit of the Board Member as admissible evidence, disposed of the Member's application for exemption from personal appearance by directing him to appear and depose personally, and deferred consideration of condonation of delay pending satisfactory explanation for the delay in constituting the review Committee and verification by the Member's oral deposition. Issues Involved:1. Correction of Typographical Error in Miscellaneous Application.2. Validity of Affidavit Filed by Member, CBE & C.3. Deposition by Deputy Secretary, Government of India.4. Time Taken by CBE & C for Review.Detailed Analysis:1. Correction of Typographical Error in Miscellaneous Application:The Commissioner filed M.A. No. 237/08 to correct a typographical error in his earlier MA(COD) No. 280/07. The Tribunal allowed this correction, changing 'December, 2005' to 'December, 2006' in both the application and the Tribunal's earlier Misc. Order No. M-174/KOL/08 dated 9-6-08. This adjustment ensures accuracy in the documentation.2. Validity of Affidavit Filed by Member, CBE & C:The Tribunal scrutinized an affidavit filed by Shri B.K. Gupta, Member of the Board, which bore discrepancies in its verification dates-signed on 2nd July 2008 but notarized on 3rd July 2008. The Tribunal noted that the affidavit lacked depositions and was unauthenticated, rendering it inadmissible. This aligns with the judicial principle that affidavits must be verified correctly to be considered valid evidence, as emphasized in A.K.K. Nambiar v. UOI & Ors. - 1969 (3) SCC 864.3. Deposition by Deputy Secretary, Government of India:Shri Ashok Chakrabarti, Deputy Secretary, admitted his lack of knowledge regarding Customs and Excise law and the statutory provisions for appointing and posting Customs and Excise Commissioners and Chief Commissioners. His deposition revealed significant administrative lapses, including the issuance of office orders without proper gazette notifications. The Tribunal highlighted the confusion and inefficiency within the Central Board of Excise and Customs, emphasizing the need for statutory compliance and proper administrative procedures.4. Time Taken by CBE & C for Review:The Tribunal examined the time taken by the Board to review orders before the power was transferred to the Committee of Chief Commissioners. The study showed that the Board often reviewed orders at the last moment, indicating inefficiency. The Tribunal stressed the importance of timely reviews and the need for satisfactory explanations for delays, particularly in the context of the impugned case where the Chief Commissioners' Committee was not constituted in time.Conclusion:The Tribunal addressed multiple administrative and procedural issues, emphasizing the need for accuracy in documentation, proper verification of affidavits, statutory compliance in appointments, and timely reviews. The Tribunal directed Shri B.K. Gupta to appear in person for further deposition on 20-8-2008, highlighting the significance of accountability and procedural correctness in judicial and administrative processes.