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TMI Blog2009 (11) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as a party to the appeal proceedings before the Tribunal. - . As far as the merits of the issue which has been decided in the impugned order is concerned since at the instance of the first respondent the only question raised before the Tribunal was as regards his entitlement to get the goods released and as to what rate of redemption fine such relief should be ordered, we find that the Tribunal has not dealt with the said issue in the proper perspective. - when the question as to the ownership of the goods imported is substantially in issue, as such, the decision on that issue will have far reaching consequences for the determination of the release of the goods, the levy of duty, the levy of redemption fine in lieu of confiscation and for the levy of penalty for improper import. The Tribunal ought to have examined the question as to the rights of the original importer, namely, M/s Sandip Exports Limited and the present claim of the first respondent who seeks to virtually subrogate itself to that of the original importer based on certain documents stated to have been obtained from the overseas supplier. - C.M.A. No. 1028 of 2007, M.P. No. 1 of 2007 and M.P. No. 1 of 2009 - - - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004. Since there was no response from the Commissioner, the first respondent approached this Court by way of Writ Petitions, in W.P.No.29860/2004 and W.P.No.1827/2006. A common order came to be passed in the said Writ Petitions on 31.03.2006 wherein while directing the Commissioner to adjudicate on the show cause notice dated 11.02.2005 issued to M/s Sandip Exports Limited and in the said proceedings to permit the first respondent herein to participate and prove its claim. The Commissioner passed the order in Original No.5094/2006 dated 04.05.2006 wherein the Commissioner passed the following order: "1. I order the denial of benefit of duty exemption claimed under Customs Notification No.48/99 dated 29.04.1999 for the consignment covered under the Bill of Entry No.39260 dated 08.09.2003. 2. I demand the differential duty of Rs.20,34,882/- for the goods covered under the Bill of Entry No.39260 dated 08.09.2003 be paid by them along with interest applicable as per Sec.28 AB of Customs Act, 1962. 3. I order the confiscation of goods totally valued at Rs.18,49,278/- under Section 111 (m)and 111(o) of the Customs Act 1962. However I give the option to M/s Sandip Exports Ltd, K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w when we heard Mr.P.Mahadevan, learned standing counsel for the appellant, the learned counsel submitted that mere participation of the first respondent in the adjudication proceedings by itself did not recognize his right to seek for release of goods and on the other hand, it was incumbent upon the first respondent to establish his right vis-a-vis the original importer, namely, M/s Sandip Exports Limited. The standing counsel therefore submitted that the Tribunal failed to consider the said question in the proper perspective and therefore, it calls for interference. The learned counsel also submitted that the reduction of redemption fine was not justified and therefore, on that ground as well the impugned order should be set aside and the Order-in-Original should be restored. 6. As against the above submissions Mr.Joseph Prabakar, learned counsel for the first respondent contended that the first respondent was only aggrieved against para 5 of the ultimate order of the adjudicating authority dated 04.05.2006 and therefore, there was no necessity for the first respondent to implead the original importer M/s Sandip Exports Limited, that when once the supplier, recognised the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exports Limited. In the said circumstances, we are of the view that the presence of M/s Sandip Exports Limited as a party to the proceedings before the Tribunal was imminent. Though the learned counsel for the first respondent would contend that M/s Sandip Exports Limited did not appear before the original authority and therefore, no useful purpose would be served by impleading him as a party, it will have to be stated that the impleading of the party to the proceedings on the principle as to whether such a party is a necessary party or not to the proceedings cannot be determined based on the party's option to avail the opportunity to participate in the proceedings. Therefore, the said contention of the learned counsel for the first respondent cannot be accepted. 8. After impleading the original importer in the appeal proceedings before the Tribunal it is for M/s Sandip Exports Limited to either avail the opportunity or to abstain itself from participating in the proceedings. But so long as the said party is a necessary party to the proceedings, the disposal of the appeal in its absence i.e., without even being impleaded as a party, in our considered opinion would vitiate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this appeal. However, the matter is remitted back to the second respondent Tribunal for deciding the appeal afresh. Before passing final orders in the appeal, the Tribunal shall implead 1. M/s Sandip Exports Ltd., Flat 5, II Floor, 220, A.J.C.Bose Road, Kolkata-17. 2. M/s Sandip Exports Ltd., No.16A, Amrita Banerjee Road, Kolkatta -700 026. The Tribunal shall dispose of the appeal within two months from the date of its service of notice on the newly impleaded party. 14. The learned counsel for the first respondent placed reliance upon two other documents which emanated from the office of the Customs Department, namely, from the Assistant Commissioner of Customs, SIIB and Assistant Commissioner of Customs, (GR-7B) dated 19.4.2007 and 11.1.2008. The learned counsel also placed before this Court Bill of Entry No.458810 dated 11.5.2007 and TR6 Challan dated 21.5.2007. By referring to the above documents, the learned counsel for the first respondent contended that the right of the first respondent to get the goods released was fully established inasmuch as in the letter dated 11.1.2008 the Assistant Commissioner of Customs himself called upon the first respondent to take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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