TaxTMI 
TaxTMI 
2010 (1) TMI 385
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....passed by the Commissioner (Appeals) on 26th May, 2004. The said order of the Commissioner (Appeals) was received by the applicants on 23rd July, 2004. Considering the same, the appeal ought to have been filed on or before 21st October. 2004. 3. It is the case of the applicants that they had, in fact, filed the appeal on 23rd August, 2004. However, the same was not in accordance with the procedure prescribed under the Cestat (Procedure) Rules in relation to the appeal and, therefore, the applicants were directed under memo dated 27th September, 2004 to remove the defects. As the defects were not removed, further memos were issued on 3rd January, 2005, 04th April, 2005, 4th July, 2005 and 21st October, 2005. It is the further case of the ap....
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....support of the application submitted that, as the defect memos were not received by the applicants at the new address, the applicants could not remove the defects and, therefore, the applicants cannot be blamed for delay in the matter. It was only after return of the appeal papers on 24th February, 2009 that the applicants came to know about the defect memos stated to have been issued to them and considering the same the appeal, which was filed on 17th April, 2009 cannot be said to have been filed without sufficient cause for delay. 6. The learned DR, on the other hand, submitted that, there is nothing on record to show that actually the appeal was filed in the year 2004 and even assuming that any such appeal was filed, no question of fili....
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....had mentioned in the memo of appeal which was filed on 23rd August, 2004. At the same time, in the course of the arguments to the query made with the learned advocate for the applicants, it was candidly accepted that such intimations must have been sent to the address which was disclosed in the appeal filed on 23rd August, 2004. Once it is not in dispute that in the appeal filed by applicants on 23rd August, 2004, they had disclosed the factory address as their address for correspondence and that the intimations were accordingly sent to the said address, it is too late in the day for the applicants to make any grievance of non-receipt of the intimations sent to them at the said address. In any case, non-receipt of those intimations cannot b....
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.... once the appeal papers are returned and it cannot be said that the appeal was filed and pending before the Tribunal and considering the same it cannot be said that the present appeal has been filed for the second time. The contention is totally devoid of any substance. 11. Rule 11 of the CESTAT (Procedure) Rules reads thus : "Rule 11. Rejection or amendment of memorandum of appeal - (1) The Tribunal may, in its discretion, on sufficient cause being shown, accept a memorandum of appeal which is not accompanied by the documents referred to in rule 9 or is in any other way defective, and in such cases may require the appellant to file such documents or, as the case may be, make the necessary amendments within such time as it may allow. (....
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....d without complying with the provisions of CESTAT (Procedure) Rules. At the same time, sub-rule (2) of Rule 11 empowers the Tribunal to reject any memorandum of appeal for noncompliance of requirement of law in relation to the filing of the memo of appeal. 12. It is true that there is no specific provision in the nature of Section 2(2) of Code of Civil Procedure either in the Central Excise Act or in the-Rules framed thereunder. However, bearing in mind the provisions of Section 35(d) of the Central Excise Act, 1944 read with the provisions of Section 129-C(6), (7), (8) of the Customs Act, 1962, the principle laid down under Section 2(2) of the Civil Procedure Code, cannot be ignored. It clearly states that, rejection of plaint shall be de....