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TMI Blog2016 (1) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the applications seeking their impleadment. 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 liberal approach in this regard. - in the absence of the necessary parties namely the Customs officers, those (i.e. the appeals] also cannot be sustained - Decided against Revenue. - Appeal No. C/Misc/4256-4257/2012 in C/280/2007, C/Misc/4128-4129/2012 in C/332/2007, C/Misc/4101/2012 in C/333/2007, C/Misc/4205-4206/2012 in C/334/2007 ,C/Misc/4126-4127/2012 in C/392/2007 ,C/Misc/4259-4260/2012 in C/402/2007 - Final Order Nos. C/A/52781-52786/2015-CU(DB) - Dated:- 22-7-2015 - G. Raghuram, President And R. K. Singh, Member (T) For the Appellant Rep by: Shri Govind Dixit, DR For the Respondent : Ms Priyanak Goel, Adv ORDER Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to be now impleaded. 6. In the circumstances, it is necessary to have a chronology of events from the date of filing of the appeals, a compilation of the relevant applications and orders of this Tribunal; of the Delhi High Court, and the order dated 21.12.2009 passed by the adjudicating authority (which was been set aside by the Delhi High Court] 7. Ld. Counsel for the affected officers Shri S. Sunil and ld. DR Shri Govind Dixit representing Revenue seek time to file relevant documents. 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 International, Vikrant Overseas, Shree Durga Impex, Tech Inds. Corpn., International Engineering and Bright Well Enterprises). No penalty was imposed on any officer. 26.4.07 Appeals filed by expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Order No. IO/C/90-95/2015-CU(DB) dated 8.4.2015 in the case of Brightwell Enterprises Others. Vide the said order, the CESTAT in paragraph 5 determined that a crucial issue which remained for consideration was: whether 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 in the first instance; and whether the miscellaneous applications for impleadment could be heard without notice to the effected officers, sought to be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstance. No further notice would be necessary for their participation in the said appeals. (vi) CESTAT vide its Misc. order dated 22.7.2011 proceeded to interpret the High Court judgement dated 30.4.2010 to the effect that the defect in filing of the appeal by Revenue was a curable one and not a fatal one. (vii) It must not be forgotten that the Hon'ble 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 to amend its appeal 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 ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 State in recruiting teachers was challenged by the petitioners. But the persons who would be vitally affected were not joined as party-respondents. The Supreme Court observed that the High Court ought not to have heard the matter in the absence of those persons or at least some of them in a representative capacity. While summarising the conclusions, the Court observed: A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who 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. Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that CESTAT vide its order dated 22.07.2011 has already held as under:- Keeping in view the direction of the Hon'ble High Court, Revenue is required to amend its appeal 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 position with regard to the issue involved is elucidated in the preceding paragraphs, we nevertheless take up this contention for analysis. It is seen that the said order (dated 20.7.2011) of CESTAT required Revenue to amend the appeal memo to include the Customs officers as necessary party and serve the appeal memo upon them. CESTAT gave six weeks to comply with this process and directed Revenue that the process of amendment of appeal memo and service of copy thereof on the Custom officers should be completed by 29t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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