2017 (4) TMI 28 - AT - Central Excise

Maintainability of appeal - non-impleading necessary parties/respondents - Rule 6(2) of CESTAT Procedure Rules - Held that - What is provided in the said rule is that a single appeal has to be filed in respect of each order in original by the aggrieved persons. It does not relieve the appellant from impleading all the respondents/necessary parties to the appeal - As necessary parties are not impleaded and the appeal is filed only against one person, although in the appeal grounds the prayer is to set aside the order passed against all five persons, I find that the appeal is not maintainable due to the above discussed defect of not impleading necessary parties/respondents - appeal dismissed being not maintainable.

Summary

Issues: Appeal maintainability due to non-impleading of necessary parties

In this case, the main issue revolves around the maintainability of the appeal filed by the department due to the non-impleading of necessary parties, specifically four out of the five persons against whom the demand was raised. The Commissioner (Appeals) had set aside the demand, interest, and penalty against all five persons, but the department only filed the appeal against one person, failing to include the other four as respondents.

Detailed Analysis:

The advocate for the respondent strongly argued that the appeal filed by the department was not maintainable due to the failure to implead all necessary parties. The original authority had confirmed the demand against all five persons, but the Commissioner (Appeals) set aside the order against all of them. Despite the department challenging the setting aside of the order against all five persons, they only filed the appeal against one person, which was deemed a defect.

The department mistakenly believed that Rule 6(2) of the CESTAT Procedure Rules allowed them to file a single appeal as the aggrieved party. However, the rule actually requires a single appeal for each aggrieved person in respect of each order in the original. The failure to implead necessary parties was considered a critical defect, even after being brought to the department's attention and granting an adjournment to rectify it.

Due to the non-impleading of necessary parties and the appeal being filed only against one person while seeking to set aside the order against all five, the tribunal concluded that the appeal was not maintainable. The lack of action by the department to rectify the defect, despite being aware of it, led to the dismissal of the appeal on grounds of non-maintainability.

In conclusion, the judgment emphasizes the importance of impleading all necessary parties in an appeal and clarifies the misinterpretation of the relevant procedural rule by the department. Failure to comply with the procedural requirements resulted in the dismissal of the appeal for not being maintainable.