Appeal — Defect in Memorandum of Appeal filed by Department.

[Commissioner of C. Ex and Customs, Daman v. J. M. Mehta,
2011 (263) ELT 57 (Guj.)]

During the course of hearing of appeals filed by the Revenue
against a consolidated order passed by CESTAT, various errors/defects had been
noticed; one of the principal error being non-swearing of the affidavit
accompanying each of the appeals and non-mentioning of the dates on which the
appeal Memorandum had been signed. In each of the appeals various fundamental
defects had occurred rendering the appeals invalid in law.

The deponent stated that the affidavit was signed for and on
behalf of the appellant viz. the Commissioner without specifying as to
whether the said gentleman had been authorised to make the affidavit for and on
behalf of the appellant. The affidavit was neither sworn before a Judicial
Magistrate, nor an Executive Magistrate, nor a Notary Public, nor any other
Gazetted Officer who is empowered to administer the oath. Thus, the affidavit
was a mere sheet of paper without being an affidavit as understood in the legal
parlance.

Thus, the appeals had been filed in contravention of the
statutory requirements of High Court Rules and were not valid appeals in the
eyes of law. However, bearing in mind the larger interest of the exchequer, the
appeals were not dismissed as such and permission was granted to withdraw the
appeals so as to enable the appellant to prefer fresh set of appeals.

However, in order that such serious lapses do not recur the
same was brought to the notice of the persons higher up in hierarchy so as to
enable them to put in place an appropriate procedural machinery.