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Commissioner of Customs, ICD, New Delhi Versus Brightwell Enterprises, International Engineers, Shree Durga Impex, Vikrant Overseas, Sunrise International, Tech Industrial Corp And Others

2016 (1) TMI 145 - CESTAT NEW DELHI

Condonation of delay - Evasion of custom duty - penalty was sought to be imposed, upon the Customs Officers, they were indisputably the necessary parties and not merely proper parties. - Held that:- It is seen that the applications for impleadment of officers were made in October 2012 i.e. after almost 15 months from the date of that CESTAT order (dated 22.07.2011) while the time granted was only 6 weeks (up to 29.8.2011). Having thus totally failed to comply with the said order of CESTAT, the R .....

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In the applications filed in 2012, no reasons (beyond saying "administrative reasons") even remotely satisfactory have been given to explain the delay of so many years with reference to the date of the impugned order-in-original, or even the delay of more than one year with reference to CESTAT order dated 22.7.2011 against only 6 weeks allowed by CESTAT. Thus we find not even an iota of reasonable ground on the basis of which such inordinate delay can be condoned even by adopting the most libera .....

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R. K. Singh, Member (T) For the Appellant Rep by: Shri Govind Dixit, DR For the Respondent : Ms Priyanak Goel, Adv ORDER Per R. K. Singh These appeals are listed for hearing, pursuant to the judgement dated 30.4.2010 of the Delhi High Court in Writ Petition No. 1676/2010. The High Court quashed the Final Order No. 18.6.2009 passed by this Tribunal in these appeals and the order dated 21.12.2009 passed by the Commissioner of Customs, Delhi consequent on an order of remand contained in the CESTAT .....

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sition of penalties against whom is the singular grievance in the appeals; thus without impleading necessary parties to the appeals. 3. These appeals were disposed of on 18.6.2009 setting aside the adjudication order and remanding the matter to the adjudicating authority to consider inter alia imposition of penalty on the officers. Consequent on the remand the adjudicating authority passed de novo orders on 21.12.2009, Aggrieved thereby, the officers filed Writ Petition before the Delhi High Cou .....

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ether Revenue's appeals filed in 2007 could be considered as having been duly instituted according to law since necessary parties were not impleaded. Other issues are whether applications filed in 2012 for impleadment of the necessary parties the effected officers could be considered without determination of existence of justifiable reasons for failing to implead them in the first instance; and whether the Misc. applications for impleadment could be heard without notice to the effected offic .....

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ts. For this purpose matter is adjourned to 8.7.2015. As both the parties are present, no fresh notice need be issued. A copy of this docket order shall be furnished to both parties." 6. In pursuance of the said order dated 8.4.2015 of CESTAT, the ld. Advocate on behalf of the some of the Customs officers filed the chronology of event essentially as under: 3.1.2007 Order-in-Original No. 10/GS/CC/DRI/NCH/2006 dated 3.1.2007 was passed by Commissioner, holding against exporters (Sunrise Inter .....

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making any officer a party, but praying that penalty be directed to be imposed on the officers (including the applicant). No notice of these appeals were ever issued to the applicant or other officers, and none of the officers was heard. 18.6.09 Final Order was passed, setting aside the Order-in-Original dated 3.1.07 of the learned Commissioner and remanding the matters for de novo consideration by holding the grievance of the Revenue, as contained in its appeals, to be justified. 21.12.09- Orde .....

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were taken on board. The Counsel, appraised the Tribunal regarding the judgement dated 30.4.10 passed by the Hon'ble High Court. It was submitted that the appeals preferred by the Revenue had not been made available to the officers. 8.7.11- Appeals preferred by Revenue were once again taken on board. On this date, it was also submitted before this Tribunal that Revenue had sought relief against the officers without making them parties. The Tribunal, therefore, observed that Revenue was requ .....

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fact that no appeal memo of the Revenue against the officers has come up. There was no instruction with the Registry from Revenue as to whether they have filed any appeal against them. The Registry was also directed to search the records as to whether any appeal has been filed by the Revenue against the petitioners. 7. Revenue during the hearing on 22.07.2015 and in its written submissions filed on 29.07.2011 essentially contended/pleaded as under: (i) The Hon'ble CESTAT issued an Interim O .....

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e considered without determination of existence of justifiable reasons for failing to implead in the first instance; and whether the miscellaneous applications for impleadment could be heard without notice to the effected officers, sought to be now impleaded." (ii) The CESTAT therefore desired that it should be provided with a chronology of the events of the case from the date of filing of appeals along with a compilation of relevant applications and orders of the CESTAT and the Hon'ble .....

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aken up for hearing for their final disposal. Revenue heavily relies upon paragraphs 3, 6 and 7 of the order dated 30.4.2010 of the Delhi High Court to emphasize the point that while the Hon'ble Delhi High Court took notice of the fact that the names of the Customs Officers were not shown as respondents in the Form annexed to the appeal before the CESTAT and only the concerned exporters were shown as the respondents and the addresses at which the notices were to be sent to respondents were o .....

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ed to the Customs Officers as they would have got an opportunity to contest the appeal filed by the department and to present their case before the Tribunal. (v) The Hon'ble High Court after setting aside CESTAT's Order dated 18.6.2009 and the original adjudication Order dated 21.12.2009 to the extent of penalty imposed on the Customs Officers, issued the following directions: "The Tribunal is directed to pass fresh order in the appeals of the Department against the petitioners, aft .....

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e Delhi High Court after noting the defect in para 3 of its judgement also observed that the prayer in the appeal filed by the department before CESTAT was to seek orders from CESTAT to impose penalty on the Customs Officers which indicated that the appeal was filed with a prayer directed at the Customs Officers. On 22.7.2011, the CESTAT in its Misc. Order No. C/169/2011 in paragraph 3 has reasoned as follows: "Keeping in view the direction of the Hon'ble High Court, Revenue is required .....

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een settled by the CESTAT as far as in July 2011, cannot be re-opened again when Revenue has filed appeals in pursuance of the CESTAT order dated 22.7.2011. The arguments regarding non-impleadment of necessary parties was a matter taken cognizance of by the Hon'ble Delhi High Court on 30.4.2010 and yet the Hon'ble High Court directed the CESTAT to pass fresh order in the appeals of the department against the petitioner after giving opportunity for hearing to the parties. This was carried .....

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annot and should not sit in review over the decisions of another coordinate CESTAT Bench. This is impermissible under law. 8. The ld. Advocates for the Customs officers contended that the Customs officers cannot be allowed to be impleaded so many years after the impugned order of the Commissioner. These appeals were filed in 2007 without naming the Customs officers as respondents and thus in effect, as far as the Customs officers are concerned, there was no appeal filed with regard to them. 9. W .....

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party is a necessary party to the proceeding. "(i) There must a right to some relief against such party in respect of the matter involved in the proceedings in question; and (ii) It should not be possible to pass an effective decree in the absence of such a party." It is self evident that the Custom officers satisfied both the above conditions and therefore they are the necessary parties beyond any pale of doubt. In Prabodh Verma Vs. State of U.P. - [1984] 4 SCC 297, the action of the .....

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o would be vitally affected by its judgement being before it as respondent or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties." A Similar view was taken in Ishwar Singh.Vs. Kuldip Singh - 1995 Supp. (1) SCC 179 and in J. Jose Dhanapaul Vs. S. Thomas - 1996 (3) .....

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sed by respondent No. 2 to the extent they impose penalty upon the petitioners, are hereby set aside. The Tribunal is directed to pass fresh order in the appeals of the Department against the petitioners, after giving opportunity of hearing to the parties. The parties are directed to appear before the Tribunal on 17th May 2010 in the first instance. No further notice would be necessary for their participation in the said appeals. All the five writ petitions stand disposed of." Thus, the Hig .....

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Supreme Court decision in the case of Udit Marain Vs. Board of Revenue - AIR 1963 SC-786 which is a leading decision on this point. In that case certain orders were passed by the Commissioner as well as by Board of Revenue in favour of x and y. Those orders were challenged by A by filing a petition in the High Court. Though initially X and Y were joined as respondents, their names were struck off. When the matter reached the Supreme Court, it was contended that X and Y were not only proper part .....

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l memo to include these three respondents as necessary party and serve them appeal memo. Learned DR seeks six weeks time to cure the defect as stated above and also to serve copy of respective appeal memo on the above three respondents. Accordingly, we direct that the process of amendment of appeal memo and service of copy thereof should be completed by 29th August, 2011." and that another coordinate bench of CESTAT should not sit in review of that judgement. Although the jurisprudential po .....

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