TMI Blog2009 (6) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... al to the extent of the prejudice suffered by inaction of the original assessee through whom he claims the relief. - . The question of law as framed would have to be answered in the negative against the Revenue and in favour of the assessee. - 32 of 2009 - - - Dated:- 16-6-2009 - <?xml:namespace prefix = st2 /> Ferdino I. Rebello and J.H. Bhatia, JJ. S/Shri Prakash Shah with Jas Sanghavi i/by PDS Legal, for the Appellant. Shri P.S. Jetly, for the Respondent. [Judgment per: Ferdino I. Rebello, J. (Oral)]. - Admit on the following question: "Whether the Appellate Tribunal was right in holding that the appellant was not an aggrieved person and consequently had no locus standi to file the appeal against the order impugned before it?" 2. A few facts may be set out: At the public auction held by MSTC Ltd. On behalf of Oil and Natural Gas Corporation Ltd., Mumbai for the sale of various materials listed in the schedule to the auction notice and belonging to ONGC, the appellant participated in the public auction and was declared the successful purchaser. The material purchased by the appellant was at Sr. No. 9 of the schedule to the auction notice wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant becoming aware of the O.N.G.C. not challenging the order passed by the Commissioner (Appeals) filed an appeal along with the stay application before CEGAT. On 25-2-2004 the appeal was dismissed on the ground that the appellant had no locus standi to file an appeal before the tribunal. The appellant being aggrieved preferred Writ Petition No. 563 of 2005 before this court. The Petition came to be disposed of by order dated 15-4-2005 and the matter was remanded with directions as set out therein. On 24-7-2007 the appellant filed Misc. Application before the Appellate Tribunal seeking leave of the Appellate Tribunal to file an appeal. By an order dated 6-11-2007 the Appellate Tribunal was pleased to dismiss the appeal on the ground that the Appellant herein not being "person aggrieved" had no locus standi to file an appeal. The present appeal is against that order. 4. At the hearing of this appeal on behalf of the appellant, their learned counsel submits that considering the language used in Section 35B of the Central Excise Act, the appeal filed by the appellant was maintainable. On the other hand on behalf of the respondent-revenue, it is submitted that no fault could be fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had locus standi to prefer an appeal. That matter had been concluded before the matter was remanded to the tribunal. If the appellant herein in terms of the order of remand on applying for leave to file appeal had to show the prejudice that the appellant would suffer it was within the jurisdiction of the tribunal to grant leave, consequent upon which the appeal could be preferred. The appellate tribunal in our opinion completely lost sight of the order of remand in proceeding with the matter in the manner which it has done. We also find that the learned tribunal totally misread the judgment of the Supreme Court in Northern Plastics Ltd. v. Hindustan Photo Film Mfg. Co. Ltd. - 1997 (91) E.L.T. 502 (S.C.) while holding that the Supreme Court has held that only parties to the proceeding before the adjudicating authority could prefer an appeal to the tribunal. The learned tribunal also misdirected itself in law in holding that under the provisions of Central Excise Act it is only the manufacturer who could maintain an appeal. On this count itself, the order is liable to be set aside and the matter remanded back to the tribunal. In our opinion, however, if we adopt the course of rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a legal sense. 4. Black Law's Dictionary, 6th Edn; Page 65. Aggrieved - Having suffered loss or injury dandified injured. Aggrieved person - One whose legal right is invaded by an act complained of or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested." The Supreme Court has also held in a long line of judgments that an appeal is a creature of statute and that right to appeal has to be exercised by persons permitted by the statute to prefer appeals. It is not necessary for us to once again to refer judgments on the meaning of the expression "person aggrieved" considering the extensive discussion in Northern Plastics (supra). 8. The Supreme Court has also recognized the right of the party who is not party to the proceedings to prefer an appeal with the leave of the Court. In Smt. Jatan Kumar Golcha v. Golcha Properties (P) Ltd. - (1970) 3 SCC 573 the Supreme Court observed thus: "It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1). But in order to earn a locus standi as "person aggrieved" other than the arraigned party before the Collector of Customs as an adjudicating authority it must be shown that such a person aggrieved being third party has a direct level interest in the goods involved in the adjudication process. It cannot be a general public interest or interest of a business rival as is being projected by the contesting respondents before us." 10. In the instant case as noted, the appellant had purchased goods on which earlier it was assumed that no excise duty was payable. Then a Bank guarantee was obtained from the appellant that in the event the excise duty was demanded then he will reimburse O.N.G.C. O.N.G.C. took up the matter in appeal up to the Commissioner (Appeals) and thereafter did not take any steps. It is the Petitioner who has to pay the excise duty. It is the Petitioner's contention that classification as done by the Revenue is not correct and accordingly he is entitled to refund of duty paid. In our opinion, such person can be said to be person aggrieved as prejudice has been occasioned to him by O.N.G.C. in not preferring an appeal and the appellant having to pay the excise dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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