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TMI Blog2013 (11) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... ch posts, therefore, in the absence of the State in the array of parties, the cause will be defeated for non-joinder of a necessary party to the lis, in any court or Tribunal. The adjudication order as confirmed by the order of the Commissioner (Appeals) in the case are incompetent and consequently the adjudicated liability cannot be recovered by lawful process of law, from the Indian Railways, a department of the Union of India or from any division - The adjudicated liability, in the circumstances cannot be charged on the Indian Railways - Since the very initiation of assessment proceedings, in respect of the alleged liability to service tax of the India Railways is patently misconceived, the entire proceedings are a nullity - The appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilway Manager, North Western Railway, Ajmer. At no stage of the process, culminating into the adjudication order dated 13.5.2011 passed by the Supdt., Central Excise, Ajmer was the Union of India, Department/Ministry of Railways represented by either the Secretary/Chairman, Railway Board arrayed as a party to the adjudication proceedings. The adjudication order merely imposed a penalty of Rs. 200 per day from 16.3.2008, for failure to provide information regarding the provision of service and receipt of consideration in respect of the taxable service of renting of immovable property. 3. Aggrieved thereby, the Senior Divisional Manager, North Western Railway, Ajmer, preferred an appeal before the Commissioner, Central Excise (Appeals), Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in financial matters set out in Articles 112 to Article 114 in the Constitution clearly indicate that a charge upon or an appropriation from the Consolidated Fund of India could only be in respect of expenditure of the Government of India. It is noticed in several cases, clearly oblivious of this fundamental constitutional mandate, proceedings are initiated against state actors instead of the State as duly designated under the Constitutional mandate. 6. This aspect, of the requisite procedural requirements for valid initiation of proceedings against Union of India or the Govt. of State; and how the State should be described in any such proceedings was considered in several decisions of the Supreme Court. In Chief Conservator of Forests, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , care must be taken to ensure that the necessary party is before the Court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order I, C.P.C. provides remedy when a suit is filed in the name of wrong plaintiff and empowers the Court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings. 12. The question that needs to be addressed is, whether the Chief Conservator of Forest as the petitioner/appellant in the writ petition /appeal is a mere misdescription for the State of Andhra Pradesh or whether it is a case of non-joinder of the State of Andhra Pradesh a necessary party. In a lis dealing with the property of a State, there can be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the Indian Railways, a department of the Union of India or from any division thereof. The adjudicated liability, in the circumstances cannot be charged on the Indian Railways. Since the very initiation of assessment proceedings, in respect of the alleged liability to service tax of the India Railways is patently misconceived, the entire proceedings are a nullity. The appeal before us preferred by the Divisional Railway Manager is also, for reasons alike, mis-conceived and so are the Misc. applications. 8. On the aforesaid analysis, the Misc. applications are rejected. For reasons alike the substantive appeal No. ST/57471/2013 is rejected as mis-conceived. 9. A copy of this order be forwarded to the Central Board of Excise and Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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