ORDER
G.P. Agarwal, Member (J)
1. All the captioned appeals arise out of a common Order-in-Appeal Nos. 20, 19, 18, 17/IND/84, dated 23-1-1984 passed by the Collector of Central Excise (Appeals), New Delhi rejecting the four appeals filed by the appellants before him on the preliminary ground that the same were filed without affixing the requisite Court Fees Stamp.
2. Factual Backdrops: The appellants are engaged in the manufacture of hand made Biris having Biri factories at different centres in the State of Madhya Pradesh. The Central Excise Officers concerned recovered Biri ‘Cess’ on 31-12-1981. Thereafter the appellants filed their four applications for refund with the jurisdictional Assistant Collector of Central Excise, Sagar. The Assistant Collector, however, issued Show Cause Notices in all the cases calling upon the appellants to show cause as to why the refund claims be not rejected. The appellants contested that they have not contravened the provisions of the Central Excise Act or the Rules made thereunder. However, the Assistant Collector rejected the refund claims filed by the appellants holding that the ‘Cess’ levied on the Biris was correct and therefore the payment made by the appellants of Cess was also correct. Being dis-satisfied, the appellants filed their separate appeals before the Collector of Central Excise (Appeals), New Delhi which were disposed of by a common impugned order on the ground that no Court Fees Stamp on these appeals were paid. Hence these appeals. The Department has also filed their four Cross-Objections in all the appeals, inter alia, on the ground that in two cases no reply was given by the appellants to the Show Cause Notices.
3. At the time of hearing the appellants instead of entering into appearance requested that their appeals be decided on merits. Accordingly, I heard Smt. Nisha Chaturvedi, learned SDR for the respondent and perused the record.
4. In all the appeals the appellants have not disputed that the requisite Court Fees was not paid before the Collector, Central Excise (Appeals) New Delhi. What they have contended is, that the impugned order suffers from non-observance of the principles of natural justice, inasmuch as, the Collector, Central Excise (Appeals), New Delhi should have given an opportunity to the appellants to remove the said defect in the appeals. They have also stated in their grounds for appeals that the Collector, Central Excise (Appeals) should have considered the appeals on merits instead of rejecting them on a mere technical ground specially so when the appellants had vide their letter dated 6-12-1983 explained him the circumstances responsible for the omission and submitted that the appellants would readily pay the requisite Court Fees, that is to say, by affixing the Court Fees Stamp on the Memorandum of Appeals, if so directed. Against this I find in the impugned order that the Collector, Central Excise (Appeals), New Delhi has dismissed the appeals by observing that “all the four appeals have been filed without affixing the requisite Court Fees Stamp and infirmity which cannot be cured.” It deserves to be mentioned here that the impugned order was passed on 23-1-1984 and there is no discussion regarding the alleged letter dated 6-12-1983 said to have been addressed to the Appellate Collector requesting that the appellants would readily affix the Court Fees Stamp, if so directed. Further, from the Cross-Objections filed by the respondent, which are in the nature of reply to the grounds taken in the appeals, I observe that with regard to this contention of the appellants that the request was made vide their letter dated 6-12-1983, the respondent has merely stated that “it has no comments to offer.” From, the impugned order I find that the learned Collector (Appeals), New Delhi has not stated any provision of the law or authority to hold that failure to affix the requisite Court Fees Stamp is an infirmity which cannot be cured. From the Order-in-Original against which the appellants filed their appeals before the Collector of Central Excise (Appeals), New Delhi, it is seen that its Preamble provides that the appeal “should bear a court fees stamp of Rs. 4/-.” In the instant case the appellants did ask for the time vide their letter dated 6-12-1983, supra, but it appears from the impugned order that the Collector (Appeals) did not consider it proper to decide the said application presumably on the ground that, in his opinion, such infirmity cannot be cured. I am afraid this approach of the learned Collector (Appeals) is neither judicious nor in consonance with the principles of natural justice. It was the duty of the Collector (Appeals) first to decide that request contained in the said letter dated 6-12-1983 after hearing the appellants before taking any final decision in the appeals. Moreover, procedural justice requires that in case the appeal is not properly stamped, it ought to have been returned to the appellants for presentation after supplying (affixing) the requisite Court Fees Stamp. No law or the procedural justice permits the rejection of the appeal straightaway without the return of the same or without requiring the appellants to remove the deficiency, on the ground that the appeal did not bear the requisite Court Fees. Even in the Civil Courts where the plaint is written upon paper insufficiently stamped, the Court is bound to give the plaintiff time to make good the deficiency and it is only when the plaintiff fails to supply the requisite stamp-paper within the period fixed by the Court, the plaint may be rejected. The Courts are also empowered to allow the plaintiff to pay the whole or the part, as the case may be, of the requisite Court Fees at any stage of the proceedings. It is true that there are specific provisions to this effect in the Code of Civil Procedure, 1908. To wit, Order VII, R.11 provides for the rejection of the plaint only when the plaintiff fails to pay the requisite Court Fees even asked for by the Court earlier and Section 149 C.P.C. empowers the Court to allow the plaintiff to pay the whole or the part of the requisite Court Fees at any stage. It is also true that there is no such express provision in the Customs Act, yet there is no prohibition in the Central Excises and Salt Act, 1944 in resorting to the principles contained therein. In the instant case the Central Excises and Salt Act, 1944 does not expressly provides for any Court Fees on the Memorandum of Appeal which are filed before the Collector, Central Excise (Appeals). Therefore, the general provisions of the Court Fees Act applies and the appellant is required to pay a fixed Court Fees stamp as per the Schedule attached to the Court Fees Act, 1870 and it appears that keeping in view the said Schedule it was provided in the Preamble of the Order-in-Original that the appeal should bear a Court Fees Stamp of Rs. 4/-. Thus, in my considered opinion, substantial justice cannot be sacrificed at the altar of the procedural justice. In other words, in the absence of any prohibition in the Central Excises & Salt Act, 1944, the substantial right of appeal cannot be snatched, away so lightly merely because at the first instance the requisite Court Fees was not paid. After all the Court Fees Act was passed not to arm a litigant with a weapon of technicalities against his opponent but to secure revenue for the benefit of the State. Court Fee is a Crown debt and can be realised even after the passing of the decree but before its execution. At any rate since the Collector of Central Excise while hearing and deciding the appeals filed under the provisions of the Central Excises and Salt Act, 1944, admittedly, acts judicially and is required to decide the appeal in a judicious manner, I am of the considered view that such infirmity is curable and the Collector (Appeals) has power, of course subject to his discretion, to allow the appellants to pay the whole or the part of the requisite Court Fees at any stage of the proceedings and, therefore, he should not have dismissed the appeals for want of requisite Court Fees Stamp straightaway without giving a proper opportunity to the appellants to remove the said deficiency, even though there is no such express provision in the Central Excises and Salt Act, 1944, empowering the Collector (Appeals) to. allow the appellants to pay the requisite Court Fees like Section 149 or Order VII, Rule 11, C.P.C. to secure the ends of justice. It is, however, made clear that the power to make up the deficiency of Court Fees is subject to the discretion of the authorities and is not claimable as a right by a party.
5. In the light of the foregoing discussions, I set aside the impugned order and remand the case to the Collector, Central Excise (Appeals), New Delhi to decide all the appeals on merits after giving a proper opportunity to the appellants to pay the requisite Court Fees in all the, appeals.
6. Cross-Objections also stand disposed of accordingly.
