2007 (8) TMI 221 - AT - Central Excise

Appeal of revenue dismisses by Comm(A) In order to confirm demand under SCN all the 7 noticees were required to have been made parties but dept. field appeal; against respondents only Dept. did not take any steps to rectify the above defects Appeal is non-maintainable

Summary

Issues:
Maintainability of the appeal due to non-joinder of necessary parties and failure to rectify defects pointed out.

Analysis:

1. Maintainability of the Appeal:
The case involved a Revenue appeal arising from an Order-in-Original passed by the Commissioner of Customs & Central Excise, Hyderabad, where the Commissioner dropped proceedings regarding the clubbing of clearances and clandestine removal of goods. The Commissioner found the units owned by different individuals to be independent and geographically separate, with separate registrations and bank accounts. The Central Board of Central Excise and Customs directed the Commissioner to challenge the original order, specifically against one of the parties, M/s. Rohit Industries. However, the appeal was not filed against all the noticees, leading to a contention of non-maintainability raised by the Respondent.

2. Legal Arguments:
The Respondent argued that the appeal was not maintainable as all noticees were required to be made parties, as per the provisions under Section 35 E (1) of the Central Excise Act, and the period for filing the appeal had expired. The Respondent cited a case where the Tribunal dismissed appeals for delay beyond the allowed period, emphasizing that the defect of not filing appeals against all appellants is incurable. The Respondent contended that the appeal should be dismissed based on the Larger Bench judgment.

3. Court's Decision:
The Tribunal considered the arguments and found that the Revenue had proceeded against the Respondent and other units for various allegations, including suppression of facts and non-payment of duty. The Commissioner dropped the proceedings after examining evidence presented by the units. However, the Review Order directing the appeal against only one party, M/s. Rohit Industries, was found to be flawed as all noticees were not made parties. As a result, the Tribunal dismissed the appeal as non-maintainable due to the non-joinder of necessary parties and the Revenue's failure to rectify the identified defect.

In conclusion, the Tribunal's decision was based on the procedural flaw of not including all noticees as parties in the appeal, leading to the dismissal of the appeal for non-maintainability. The judgment highlighted the importance of following proper procedures and ensuring all relevant parties are included in legal proceedings to maintain the integrity of the appeal process.