TMI Blog1986 (4) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985 as well as the orders dated 10th May, 1985, passed by the Assistant Collector. The petitioners have pleaded in the writ petition that petitioner No. 1 among other things carries on the trade and business activities of manufacture of soap and oils. The petitioner No. 1 had filed a classification list under rule 173B of the Central Excise Rules, 1944, effective from 25th September, 1980, seeking the classification of Hydrogenated Rice Bran Oil (HRBO) under Central Excise Tariff Item No. 12 which inter alia covers vegetable non-essential oils of all sorts and no Excise duty is payable on them. The Assistant Collector, Central Excise (ACE), Ludhiana, vide his order dated 3rd February, 1981, held that HRBO fell under Tariff Item No.68 which attracted 8% to 10% duty at the relevant time. Consequently, the petitioner paid excise duty on HRBO manufactured by them. The Collector (Appeals) allowed the appeal filed by the petitioners mainly-relying on the decisions of the Central Excise and Gold Control Appellate Tribunal (for short 'the Tribunal') which is the apex adjudicatory authority under the Central Excises and Salt Act held that HRBO manufactured by the petitioners would fall un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification referred to above, the applicant availed of refund of tune of Rs. 98,71,000/- by way of credit against the clearance of finished goods viz. soap while paying duty thereon. The net payment of excise duty to the Department on account of the clearance of the said HRBO was, therefore, nil. The incidence of the Excise duty on the writ-petitioner was also nil as it had got full refund/reimbursement of the duty from the applicant. That the question whether HRBO falls under Tariff Item No. 68 or Tariff Item No. 12 is pending consideration of the Appellate Tribunal, New Delhi, as well as the Supreme Court of India. In case it is ultimately held by the Supreme Court of India that HRBO falls under Item No. 68 and not under Item No. 12, the writ petition will be liable to be dismissed on this ground alone. It was further pleaded that in the writ petition a prayer has been made for the refund of Rs. 1,31,04,811.89 paid as Excise duty on HRBO which has already been collected by the writ-petitioner from the applicant and other purchasers of HRBO during the relevant period. The applicant and other purchasers had, thereafter obtained refund of excise duty by way of proforma credit from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assistant Collector, Ludhiana, the writ petitioner filed an appeal. The Appellate Authority under the Act mainly relying on Adjudicatory judgments of the Tribunal, which is the apex Authority under the hierarchy of the Departmental Authorities, held that HRBO was classifiable under Tariff Item 12, during the relevant period. It may be mentioned here that goods classifiable under Tariff Item No. 12 during the relevant period did not bear any Excise duty. Aggrieved by order of the Collector, the Revenue went up in appeal before the Tribunal. The Revenue also moved an application for the stay of the operation of the order of the Collector. After hearing the parties the stay application was turned down by the Tribunal. The appeal of the Department is still pending before the Tribunal, the Assistant Collector, despite the orders passed by the Collector and the Tribunal in the application for a stay declined to refund the Excise duty paid by the writ-petitioner on HRBO. The writ petitioner filed Civil Writ Petition No.3120 of 1985, seeking the issuance of a writ of mandamus, directing the respondents to refund the Excise duty paid by him and writ of certiorari quashing notice dated 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised in view of all the facts and circumstances of a particular case, but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or in other words, of jurisdiction in the limited sense in which it is used in S.I. 15 of the Code. In a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation." So, the interest of person, who claims to be impleaded as a party in a suit relating to property must be direct and not merely commercial. The ambit and true scope of sub-para (2) of rule 10 was defined succinctly by Sarkaria, J. (as his Lordship then was) in Banarsi Dass Durga Prashad v. Panna Lal - Ram Richhpal Oswal and Others, A.I.R. 1969, Punjab and Haryana 57 : "Under sub-para (2) of O.I., R.10, a person may be added as a party to suit in two cases only, i.e. when he ought to have been joined and is not so joined, i.e. when he is a necessary party, or, when without his presence the questions in the suit cannot be completely decided. There is no jurisdiction to add a party in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication under O.I., R.10 of the Code, what has to be seen is whether the addition of a new party would be consistent with the scope of the enquiry as necessitated in the pending suit and whether in the absence of such a party it would not be possible to completely and effectively dispose of the controversy in the pending suit and not that some suit may be avoided." The learned Chief Justice had quoted with approval the following observations of Sodhi, J. in Manmohan Singh v. Satnarain, A.I.R. 1971, Punjab Haryana 400 : "...... What has to be seen in allowing or disallowing an application under O.I., R.10 of the Code is whether the addition of a new party would be consistent with the scope of the inquiry as necessitated in the pending suit and that in the absence of such a party it would not be possible to completely and effectively dispose of the controversy in the pending suit and not that some other suit may be avoided." So, it we apply these principles to the facts and circumstances of the present case, then the application for being impleaded as a defendant deserves dismissal. The applicant is admittedly not a necessary party. It was not necessary for the writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this rule and those have been succinctly culled out in the judgment of Bhagwati, J. (as the learned Chief Justice then was) in S.P. Gupta and others v. President of India and others, A.I.R. 1982 S.C. 149. A rate payer of local authority can question the action of the municipality in granting cinema licence. A convict can espouse the cause of a fellow prisoner and file a habeas corpus petition. Public spirited professors were allowed to espouse the cause of helpless inmates of protective home at Agra, seeking an enforcement of the constitutional rights of the inmates under Article 21 of the Constitution by improvement of the living conditions so that inmates can live with human dignity. Again where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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