COMMISSIONER OF CENTRAL EXCISE Vs. MODERN INDUSTRIAL ENTERPRISES

JUDGEMENT

(1.) The applicant seeks impleadment in an appeal under Section 35G of the Central Excise Act which was disposed of by this Court on 2-2-2015 [2015 (319) E.L.T. 624 (Del.)].

(2.) The appeal (CEAC 3/2006) was preferred by the Revenue, i.e., the Central Excise Department aggrieved by an order of the Central Excise and Service Tax Appellate Tribunal ('CESTAT'), dated 18-7-2005 [2006 (193) E.L.T. 513 (Tri.-Del.)]. This Court had while entertaining the appeal formulated the following questions of law:-

(3.) The applicant contends that it was not impleaded as a party in the main appeal and that consequently this Court should appropriately clarify the effect of the judgment and order disposing of the appeal. By the judgment and order, the Court pronounced upon two issues, i.e., as to the question of jurisdiction (that was answered in Paragraph 8 of the final judgment) and the second - and more substantial question - pertaining to the controversy at hand relating to the CESTAT's holding that the duty demand against two entities, i.e., M/s. Modern Industrial Enterprises and M/s. Florida Electrical Industries Ltd. could not be determined on account of inability of the Revenue to segregate the material. On this aspect, the Court pronounced in favour of the Revenue holding that the Tribunal's approach could not have been supported and that the Commissioner had in fact relied upon certain materials which ought to have been analysed by the CESTAT. On the basis of these findings, the Court required the CESTAT to re-examine the matter in the light of the observations in the final judgment. One of the parties, i.e., M/s. Modern Industrial Enterprises had sought review of the order; those proceedings were disposed of on 5-8-2016. The applicant M/s. Florida Electrical Industries Ltd. contends that the clarification is necessary for the purpose of stating that the appeal by the Revenue was not preferred in accordance with the statute i.e. Section 35G inasmuch as it was not impleaded. It is argued on behalf of the appellant by Mr. Balbir Singh, learned senior counsel, that the letter of Section 35G and the procedure prescribed for it in the CESTAT Rules applicable for such appeals necessitated the impleadment of each party and the preferring of a separate appeal in case of a common order on multiple appeals. In the present case, when the appeal was lodged in the first instance, only M/s. Modern Industrial Enterprises was impleaded. Later, the Revenue sought to change the memo of parties - without any application to that effect. In the circumstances, it could not be said that a decision was rendered in properly instituted proceedings by way of an appeal resulting in a judgment adverse to M/s. Florida Electrical Industries Ltd. or the other assessees/noticees. Learned counsel stressed that the impleadment application is necessary because the CESTAT has expressed a concern as to whether in fact the final order of this Court has the effect of in any way disturbing the findings vis-a-vis respondents/assessees other than M/s. Modern Industrial Enterprises.