2016 (1) TMI 145

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....dated 18.6.2009. 2. These appeals are preferred by Revenue against adjudication orders dated 22.12.2006,19.1.2007, 21.2.2007 and 12.3.2007 passed by the Commissioner of Customs, Delhi, aggrieved that the learned adjudicating authority failed to impose penalty on certain customs officers of the Department who are alleged to have connived/colluded with exporters in evasion of customs duty. The appeals were filed on 29.6.2007 but strangely without impleading the Customs officers, the non-imposition of penalties against whom is the singular grievance in the appeals; thus without impleading necessary parties to the appeals. 3. These appeals were disposed of on 18.6.2009 setting aside the adjudication order and remanding the matter to the adjudicating authority to consider inter alia imposition of penalty on the officers. Consequent on the remand the adjudicating authority passed de novo orders on 21.12.2009, Aggrieved thereby, the officers filed Writ Petition before the Delhi High Court which passed the order dated 3.4.2010 mentioned earlier. 4. Revenue filed an application on 23.10.2012 seeking impleadment of those departmental officers against whom penalties are required to b....

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....nalty be directed to be imposed on the officers (including the applicant). No notice of these appeals were ever issued to the applicant or other officers, and none of the officers was heard. 18.6.09 Final Order was passed, setting aside the Order-in-Original dated 3.1.07 of the learned Commissioner and remanding the matters for de novo consideration by holding the grievance of the Revenue, as contained in its appeals, to be justified. 21.12.09- Order-in-Original was passed by the Commissioner imposing penalty upon the officers who were exonerated by the earlier Commissioner vide his Order-in-Original dated 3.1.2007. 30.4.10- Hon'ble High Court of Delhi vide its judgement set aside the Order-in-Original dated 21.12.09 passed by the Commissioner in the remand proceedings qua the officers who had approached the Hon'ble High Court challenging the said Order-in-Original. 17.5.10- On this date, the appeals which were filed by the Revenue were taken on board. The Counsel, appraised the Tribunal regarding the judgement dated 30.4.10 passed by the Hon'ble High Court. It was submitted that the appeals preferred by the Revenue had not been made ....

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....e adjudicating authority which was set aside by the Hon'ble Delhi High Court. (iii) In pursuance to the directions of the CESTAT, the Counsel for Shri Bamin Tari & Shri Rajeev Sood (who were sought to be impleaded by Revenue) filed a compilation along with a chronology of events. This compilation was duly brought to the notice of CESTAT Bench in Court No. 1, Principal Bench, New Delhi on 22.7.2015 when the appeals were taken up for hearing for their final disposal. Revenue heavily relies upon paragraphs 3, 6 and 7 of the order dated 30.4.2010 of the Delhi High Court to emphasize the point that while the Hon'ble Delhi High Court took notice of the fact that the names of the Customs Officers were not shown as respondents in the Form annexed to the appeal before the CESTAT and only the concerned exporters were shown as the respondents and the addresses at which the notices were to be sent to respondents were of the exporters and not of the Customs Officers who Revenue wanted to make as respondent. (iv) The High Court further noted that it was obligatory on the part of Revenue to show the names of the officers as respondents in the appeal against the column fo....

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....of the CESTAT order dated 22.7.2011. The arguments regarding non-impleadment of necessary parties was a matter taken cognizance of by the Hon'ble Delhi High Court on 30.4.2010 and yet the Hon'ble High Court directed the CESTAT to pass fresh order in the appeals of the department against the petitioner after giving opportunity for hearing to the parties. This was carried out by the CESTAT when it passed its Misc. order dated 22.7.2011. The defect having been cured by virtue of CESTAT's own Order of 22.7.2011, the appeals should be considered on their merits after adverting to the facts of the case, the issues involved and the law applicable and not disallowed on the technical ground of non impleadment of necessary parties which was already sought to notice of the Hon'ble High Court. (ix) One CESTAT Bench whether headed by its President or anybody else cannot and should not sit in review over the decisions of another coordinate CESTAT Bench. This is impermissible under law. 8. The ld. Advocates for the Customs officers contended that the Customs officers cannot be allowed to be impleaded so many years after the impugned order of the Commissioner. These app....

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....ry parties, the appeals would not survive. 10. We have perused the order of Delhi High Court, para -7 of which is reproduced as under: "7. For the reasons given in the preceding paragraphs, the impugned order dated 18.6.2009 passed by the Tribunal as well as the impugned orders dated 21.12.2009 passed by respondent No. 2 to the extent they impose penalty upon the petitioners, are hereby set aside. The Tribunal is directed to pass fresh order in the appeals of the Department against the petitioners, after giving opportunity of hearing to the parties. The parties are directed to appear before the Tribunal on 17th May 2010 in the first instance. No further notice would be necessary for their participation in the said appeals. All the five writ petitions stand disposed of." Thus, the High Court required the Tribunal to pass fresh order in the appeals of the department against the petitioners after giving opportunity of hearing to the parties and the parties were directed to appear before the Tribunal on 17th May, 2010. The parties in these appeals are Revenue and the exporters. As regards the Custom officers who were not (made) parties in these appeals, no order imposing....