TaxTMI 
TaxTMI 
2009 (1) TMI 236
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....sident of the Tribunal for constituting a Larger Bench to decide the issue. "Whether the Project Import benefit under the Project Import Regulations, 1986 under Sl. No. 26 - 'Drinking Water Supply projects for supply of water for human or animal consumption' is to be restricted only to equipments needed for water treatment plant and not for projects for bringing water from the source to the treatment plant and distribution of the treated water." 3. The above issue was decided in favour of the revenue in the case of Pratibha Industries Ltd. v. Commissioner of Customs - 2005 (188) E.L.T. 433 (T), however, the Bangalore Bench was not able to agree with the said decision of the Mumbai Bench in the Pratibha Industries case. Consequently, the issue was referred for decision by the Larger Bench. Accordingly, the Larger Bench was constituted and the hearing was fixed on 27-1-2009 at Bangalore. At the outset, this Miscellaneous Application was heard. 4. Dr. Samir Chakraborty, learned advocate appeared on behalf of the applicant (sic). Shri V. Raghuraman, learned advocate appeared on behalf of the appellant. It was stated that against the decision of the Tribunal dated September 10, 2004 ....
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....s made a clear distinction between a 'necessary party' and a 'proper party'. He took us through paras 7, 10 and 12, which are reproduced below. "7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. ............. 10. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order, but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceedings may apply of the impleading of such a party or such a party may suo motu approach the court for bein....
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....arger Bench of this Hon'ble Tribunal; or (b) In the alternative, the applicant be allowed as an intervener to be heard and to make oral/written submissions before the Larger Bench of the Hon'ble Tribunal, on the aforesaid issue referred to the said Hon'ble Bench for decision. (c) Such other order or orders be passed and/or direction be given as would be deemed fit and proper. 5. The appellant filed cross objections to the above intervention application V. Raghuraman, learned advocate urged the following points. (i) The applicant has no locus standi. In Pankaj Steel Corpn. v. CCE - 2008 (222) E.L.T. 422 (Tri.-Del.), it was held that only an assessee would have a right to agitate any wrong order passed by the Central Excise Officer and not a person who is not a legally aggrieved person. It was further stated that the Tribunal expressed similar view in the case of Pankaj Steel Corpn. v. CCE - 2004 (169) E.L.T. 228 (Tribunal) = 2004 (62) RLT 257 (Tri.-Del.), against which a Writ Petition was filed in Bombay High Court, which remanded the matter to Tribunal. The Tribunal has decided the matter against the intervener. (ii) In the case of Tinplate Company of India Ltd. v. CC - 1986 (....
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....Saila Behari L Singha - AIR 1970 SC 1702 wherein it was held that answers to questions referred to the High Court should be final and they cannot be made subject to decision in appeal pending before the Supreme Court in an other reference even with the consent of the parties. (b) Union of India v. New Vinod Silk Mills (P) Ltd. - 1997 (95) E.L.T. 165 (S.C.) - if appeal pending before the Tribunal, such pendency not to stand in the way of the Commissioner to proceed with the matter in accordance with the law. (c) Col. CE v. Sri Ram Vinyl and Chemical Industries - 2000 (117) E.L.T. 609 (T) - Tribunal not required to stay any appeal in hand merely because SLP is pending in Supreme Court. (d) Garware Polyester Ltd. v. CCE - 1999 (105) E.L.T. 705 (T) - pendency of a matter before the Supreme Court is not a justifiable ground of appeal pending before the Tribunal. (e) CCE v. KG. Denim - 2008 (229) E.L.T. 545 (Tri.-Chennai) - it is settled law that a court dealing with any question of law referred to it by the Tribunal under the Central Excise Act or the Customs Act cannot stay the operation of the Tribunal's order out of which the question was referred. The Department cannot make a pl....
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....y be incidentally affected by an order, that by itself is not a ground to implead him as a co-appellant under Rule 41 of the CEGAT (Procedure) Rules, 1982. In the case of Jagat Industries v. CCE, Kanpur (supra), the applicant M/s. UP State Electricity Board contended that they are the person who ultimately had to pay the duty, as they engaged the appellant Jagat Industries under job contract and hence, entitled to be heard in the matter. But the above contention was not accepted as it was held that prima facie they do not have any locus standi in the matter as neither the show cause notice was addressed to them nor the adjudication in order was passed against them. In the case of Nagar Rice and Flour Mills and Others v. N. Teekappa Gowda and others (supra), the change of location of rice mill was the subject matter of dispute. The sanction for the change was obtained after shifting in terms of Rice Milling Industry (Regulation Act 21/1950). The competitor challenged the said decision. It was held that the competitor in the business can have no grievance against the grant of permission permitting the installation on a new site. 6.2 A careful consideration of the above case laws wou....