ORDER
T.V. Sairam, Member (T)
1. This is an appeal filed by Pankaj Steel Corpn. challenging the order of Commissioner of Central Excise (Appeals) Mumbai VII, dated 18.3.02. It is relevant here to note that this appellant was never a party in the proceedings before the authorities below. In the impugned order passed by the Commissioner (appeals), the appellant was Oil and Natural Gas Ltd., Mumbai Regional business center, Mumbai who is the assessee and not the present appellant before us. Similarly, the earlier adjudication order i.e. order-in-original passed by the Additional Commissioner, Central Excise & Customs, Mumbai VII, was also with reference to the dispute between ONGC and the Department. Nowhere in the said two orders the present appellant is in the picture.
2. When the matter was agitated before this Tribunal earlier by the present appellant this Tribunal in its order reported in 2004 (169) ELT 228 (Tri-Delhi) had concluded that the present appellant had no locus standi to file the appeal under Section 35B of the Central Excise Act against the order passed by the Commissioner (Appeals) against ONGC. Accordingly, the appeal was dismissed.
3. Aggrieved by the said order of the Tribunal, the present appellant approached the Hon’ble High Court of Bombay, which in its judgment dated 15.4.05 has made the following the order:
By consent of parties, the impugned order dated 25th February, 2004 rejecting appeal of the petitioner for the reasons stated therein is set aside since the order was passed by the Tribunal without considering the issue of grant of leave to file appeal. In pursuance of the law laid down by the Apex Court in the case of Smt. Jatankanwar v. Golcha Properties , it was obligatory on the part of the petitioner to seek leave of the Court or Tribunal demonstrating prejudice suffered by it. Upon such demonstration, it is for the Tribunal to consider the prayer to grant or refuse to grant leave. Once leave is granted, the merits of the challenge can be gone into in the appeal. Since this procedure or formalities have not been complied with by the Tribunal, we remit this matter back to the Tribunal with liberty to the petitioner to move to seek appropriate leave from the Tribunal in the same appeal. In the event of such application being made, the Tribunal shall consider the same on its own merits without being influenced by the reasons recorded in the impugned order.
4. Respectfully following the guidelines laid down by the Hon’ble High Court of Bombay referred to above, we heard both the present appellant and the Revenue.
5. The learned Counsel for the present appellant relies heavily upon the language of Section 35B of Central Excise Act, according to which “any person” aggrieved by a decision of a Central Excise officer could file an appeal within the prescribed time period. According to him, the present appellant had every right to file the appeal under the Central Excise Act, 1944.
6. It was contended that the person aggrieved – even though not necessarily a party to the proceeding – can still file an appeal. In this context, the following judgments of the Apex Court were cited:
1. Jatan Kumar Golcha v. Golcha Properties Pvt. Ltd.
. (It would be a travesty of justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting the party and redress can be had by filing an appeal which is permitted by law.)
2. IDL Chemicals Ltd. v. Union of India
(High Court to entertain writ petition when there is no other forum to deal with )
3. Nookala Setharamaiah v. Kotaiah Naidu
. (A person who has not been made a party to a proceeding may still appeal with leave of the appellate court, provided he might have properly been made a party to the proceedings)
4. AGM, Central Bank of India v. Commissioner of Municipal Corporation of Ahmedabad
. (Where complaint is lodged by the tenant he can directly file the appeal, but where it is not lodged, he can file the appeal with the leave of the court.)
7. In addition the Learned Counsel also relied upon the ratio of the decision in Northern Plastic Ltd. v. Hindustan Photo films Manufacturing Co. Ltd. . Particularly with reference to para 10 of the judgment in which the Hon’ble Supreme Court had an occasion to interpret the phrase “person aggrieved”.
8. The decision of this Tribunal in Collector of Central Excise, Mumbai III v. Indian Rayon Industries Ltd. was also relied upon wherein it was held in para 44 that it was neither illegal nor unreasonable to hold that a buyer of excisable goods can, unless prohibited by law in other case, claim refund of the duty paid by any other person.
9. The Learned Counsel for the present appellant also referred to the definition of the words and phrases such as, ‘aggrieved”, “Aggrieved party’ as defined under Black’s Law Dictionary, Eighth Edition. For convenience sake these definitions are reproduced below:
'aggrieved': (Of a person or entity) having legal rights that
are adversely affected; having been harmed by an
infringement of legal rights.
'aggrieved party' A party entitled to a remedy; esp., a party whose
personal, pecuniary, or property rights have been
adversely affected by another person's actions or
by a court's decree or judgment.
10. The Learned authorized representative of the department contended that the present appellant has no right to appeal against the Departmental order which is directed against its assessee. It was further contended that the appellant in this case is in no way concerned with the dispute between the Department and its assessee, as the former has no rights nor any responsibilities under the Central Excise law. It was contended that the appellant is neither liable for payment of duty nor liable for any act or omission of any assessee under the said law. As the appellant is not recognized under the law, it has no locus standi whatsoever.
11. The Learned Counsel for the appellant outlined the working of the system of indirect taxation. According to him, there is an established practice of passing of the incidence of tax on the final purchaser or consumer of the goods, though the assessee in the eyes of law is only the manufacturer. This principle is well recognized under the law as one may find in Section 12B of the Act reproduced below:
Section 12B Presumption that the incidence of duty has been passed on to the buyer. – Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods.
12. It was contended therefore, that the appellant who had bought the goods from the ONGC on whom duty was wrongly levied by the department stands affected and hence an “aggrieved person”.
13. Having heard both the sides and after perusal of the documents and case law cited, we find that under the Central Excise Law, it is the manufacturer who is primarily responsible for payment of duty irrespective of the fact whether the incidence of duty stands passed on to its buyer or otherwise. Admittedly, the appellant is not an assessee in the eyes of Central Excise law and as a consequence, it has no rights nor obligations thereunder. The appellant is whingeing about the incidence of tax that could have remained passed on to its shoulders by referring to the presumption contemplated under Section 12B of the Act. But the mere fact that the incidence of levy is being passed on to a person who is not recognized under the law as a manufacturer confers no rights nor responsibilities on the appellant under the law. In our view, within the limited frame work of the law, the appellant does not seem to have any locus standi to plead his grievance. If at all the appellant harbours any grievance, it should have been against the seller and certainly not against the Department which is engaged in collection of revenue for the public exchequer in accordance with the law as laid down by the Legislature. It may be noticed in this regard that none of the orders passed by the authorities below have dealt with the grievances of the appellant who evidently, is not an assessee. ONGC which is the assessee “affected” by the impugned order is reported to have not filed any appeal against the impugned orders as they seem to have no quarrels in complying with it. If at all any appeal had to be filed, then the same should have emanated from ONGC who alone in our view, could have been the “legally aggrieved person” and not the present appellant who has no legal status in the eyes of law. Only an assessee, in our view, would have such a right to agitate any wrong order passed by the Central Excise officer, and not a person who is not a legally aggrieved person.
14. No problem can stand the assault of sustained thinking. Researching on the definition of the words ‘aggrieved’ as defined in Black’s Law Dictionary, it is clear that to be an aggrieved person, “legal rights” should have been adversely affected or it should have been harmed by an infringement of “legal rights”. Evidently, the present appellant does not derive any “legal rights” as an aggrieved person under the Central Excise law to file an appeal against an order passed by the Revenue authorities demanding duty from its assessee which is ONGC. We are aware that under the indirect tax system, the tax incidence gets passed on, almost endlessly down the line as the transaction takes place in a succession till the goods finally reaches the hands of the consumer, who ultimately ends up coughing up the duty. We are also aware that on this shrunken globe, tax is the only expanding feature for mankind. Nevertheless under the law, the consumer has no direct legal rights nor responsibilities for its act or omission as it is the assessee on whom such a responsibility squarely lies. Extending any legal rights of the assessee on its clients as proposed before us, in our opinion would create adverse impact on the orderly collection of revenue and the fiscal administration in the country causing havoc on the economic health of the nation. It is our considered view that granting of leave to file appeal in this case would amount to encouraging the citizens of the country to take law into their hands. If we allow such things to happen, the hundred odd crores of Indians, who are all covered under the indirect taxes and which include buyers, traders, consumers, dealers retailers etc. could all claim themselves as an aggrieved party challenging any and every decision of the Revenue affecting the final consumer. Allowing such agitation, in our opinion, would paralyse the functioning of the tax administration affecting the overall economic health and fiscal fabric of the nation. The legislature in its wisdom has deliberately restricted the dramatis personae under the Central Excise Law on whom the rights and responsibilities accrue. Those who are engaged in the manufacture of excisable goods (and not every Tom, Dick and Harry on whom the duty incidence stand passed on) are legally recognized. In our opinion, the present appellant who has no legal rights nor any responsibilities either for payment of duty under the law or for claiming refund being not recognized as dramatis personae in the impugned order passed under the Central Excise law, cannot be a “legally aggrieved person”. While arriving at this conclusion, we are aware of the subtle logic hidden in an earthy African saying: “One cannot look for the dung where the cow has not browsed.” As the appellant is not a party to the proceedings and does not enjoy any legal rights here, he cannot claim himself to be an “aggrieved person”.
15. Epizeuxis, such as saying “honey”, “honey” does not descend sweetness into the mouth. A number of judgments pronounced by the Hon’ble Supreme Court came to be repeatedly cited in support of the contention of the appellant. In our view, none of them could lend a helping hand to them. The Jatan Kumar Golcha’s case (supra) refers to the order made “directly affecting” the party, which is not the case here. The IDL Chemical’s case (supra) directs the High Courts to entertain writ petition when there is no other forum to deal with; we represent the Tribunal and not the High Court. In Nookala Seatharamiah, (supra), the Apex Court has insisted on the person, having “properly been made a party to the proceedings”. Admittedly the appellant is not a party to the proceedings before the authorities below. In AGM Central Bank of India case (supra), the Apex Court has focused on the rights of the tenants in a situation where there is more than one tenant who would have been affected by an order passed by a co-tenant. Thus the situation there is incomparable to the present one. As such the citations brought in are of no value for the appellant, apart from enriching us academically. On the other hand, in Northern Plastics Ltd. v. Hindustan Photo Films Mfg Co. Ltd. the Hon’ble Supreme Court has held that only the parties to the proceedings before the adjudicating authority could prefer an appeal to the Tribunal. A person aggrieved must be a man who has suffered a legal grievance, a man against whom “a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.” (In re sidebotham 14 Ch. D 458 at 465 as observed by James L.J. cited in para 10 of the judgment). It is clear from the facts on record that the appellant falls in none of these categories and hence his claim for qualifying himself to be a “person aggrieved” does not inspire confidence.
In view of the foregoing reasoning, we do not find any necessity to go into the merits of the matter. The appeal is accordingly, dismissed.
(Dictated in the open Court)