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TMI Blog2009 (6) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... . of Helidecks (cutting permission is allowed to facilitate easy loading." The Petitioner bid in the price of Rs. 59,92,480/-. In the excise duty column appearing in the delivery order, it was indicated as "-" meaning no duty was payable. The appellant took delivery of the goods. O.N.G.C. The purchased goods were the temporary decks and helidecks from Mazgaon Docks Ltd. and Hindustan Shipyard Limited. Classification declaration had been filed classifying the decks under Heading 89.05 attracting Nil rate of duty. The department however, classified the decks under the Heading 84.31 of the Tariff and demanded differential duty from these two units. The issue of correct classification of these decks is pending with the CESTAT. After the sale of the scrap to the appellant, O.N.G.C. vide letter amended the release order incorporating clauses relating to payment of excise duty on the scrap sold by them. There was an exchange of correspondence between the appellant O.N.G.C. in the matter of demand raised by excise department. On 11-2-2000 the appellant executed a bank guarantee for Rs. 8 lacs, in favour of O.N.G.C., in which there was a condition that if the excise department demands duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard the learned counsel for the parties and have also considered the judgments which have been relied upon in support of their respective submissions. We may firstly reproduce the relevant portion of the order of this court remanding the matter back to CEGAT. The relevant portion of the order reads as under: "By consent of parties, the impugned order dated 25th February, 2004 rejecting appeal of the Petitioner for the reasons stated herein is set aside since the order was passed by the Tribunal without considering the issue of grant of leave to file appeal. In pursuance of the law laid down by the Apex Court in the case of Smt. Jatankanwar v. Golcha Properties - AIR 1971 SC 374, it was obligatory on the part of the petitioner to seek leave of the Court or Tribunal demonstrating prejudice suffered by it. Upon such demonstration, it is for the Tribunal to consider the prayer to grant or refuse to grant leave. Once leave is granted, the merits of the challenge can be done into in the appeal. Since this procedure or formalities have not been complied with by the Tribunal, we remit this matter back to the Tribunal with liberty to the petitioner to move to seek appropriate leave fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re addressing ourselves to the question as to whether leave ought to be granted to file the appeal and in that context who can be said to be the person aggrieved under Section 35B of the Central Excise Act. 7. For that purpose, we may gainfully refer to Section 35B which reads as under: "35B. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under Section 35A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under Section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Central Excise, either before or after the appointed day, under Section 35A, as it stood immediately before that day;............................" The legislature thus has used the expression any person aggrieved and not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 696. 9. On behalf of the respondents, reliance was placed in the judgment in Northern Plastics (supra) as also in the judgment of Madras High Court in Lakshmi Vilas Bank Ltd. v. Commissioner of Customs, 2007 (213) E.L.T. 166 (Mad) = 2007 (6) S.T.R. 216 (Mad.). We find that Madras High Court has extensively referred to various judgments on the expression "any person aggrieved" and placed reliance on Northern Plastics Limited (supra). We may however reproduce the relevant portion in the judgment in Northern Plastics (supra) which will make it clear that even a party who was not party to the proceedings even under the provisions of Customs Act can be said to be person aggrieved and entitled to prefer an appeal. The following observations are relevant: "It is true that the phrase "person aggrieved" is wider than the phrase "party aggrieved". But in the entire context of the statutory scheme especially sub-section (3) of Section 129A it has to be held that only the parties to the proceedings before the adjudicating authority Collector of Customs could prefer such an appeal to the CEGAT and the adjudicating authority under Section 122 can prefer such an appeal only when directed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for refund would only be maintainable if the order of assessment is set aside and not otherwise. The appellant would therefore, be left with no remedy at law. The Appellant therefore, has demonstrated the prejudice that would be occasioned. It is in that context that this court rightly had directed the appellant to move an application to seek relief to prefer an appeal. The tribunal unfortunately misread the judgment of this court and proceeded to examine whether an appeal itself lies. It is true that the tribunal in its judgment has noted that conferring a right on the person other than manufacturer may create adverse impart on the ordinary claim of the Revenue and fiscal administration. In our opinion, this can be met by holding that the person aggrieved who is allowed to prefer an appeal would only be entitled to prefer appeal to the extent of the prejudice suffered by inaction of the original assessee through whom he claims the relief. This would rule out the possibility of matter going down the chain. 11. Considering the above, in our opinion, the impugned order of the tribunal is liable to set aside. The question of law as framed would have to be answered in the nega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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