- (1.) The appeal by the revenue arises from a decision of the Customs, Excise and Service Tax Appellate Tribunal dated 7 October 2013. The revenue has formulated the following questions of law: "1. Whether the Tribunal was correct in dismissing the appeal for mis-joinder of parties, in an appeal arising out of quasi judicial proceedings (wherein the provisions of CPC are not applicable) of the Central Excise Department by incorrectly applying the Judgement arising out of a suit which was in nature of pure civil proceedings? 2. Whether the Tribunal after holding the appeal to be incompetent could itself have declared/observed that quasi-judicial proceedings of the Central Excise department to be a nullity and void when the matter could not be examined on merits at all? 3. Whether the CESTAT was right in holding the appeal to be an incompetent appeal when the dispute arose out of quasi-judicial proceedings inter-se between two departments of the Union of India (Central Govt.) as the Union of India was not impleaded."
(2.) A notice to show cause was issued on 28 February 2011 by the Commissioner of Central Excise and Service Tax, Allahabad to the Divisional Railway Manager, North Central Railway by which it was sought to be alleged that service tax was not paid on the taxable service of 'renting of immovable property' under section 65(105)(zzzz) of the Finance Act, 1994 and on the taxable service of 'sale of space and time for advertisement' under section 65(105)(zzzm). The notice was adjudicated upon and the demand was confirmed by the Commissioner of Central Excise and Service Tax on 26 October 2012. An appeal was filed by the Divisional Railway Manager, North Central Railway before the CESTAT. The Tribunal by its judgment and order dated 7 October 2013 has held that at all stages of the proceedings, including the issuance of a notice to show cause, service thereof, in the adjudication and in the appeal before the Tribunal, the Divisional Railway Manager was arrayed as a sole party and at no stage, were proceedings initiated against the Union of India or the Ministry of Railways. Relying on the analogy of section 79 of the Code of Civil Procedure, the Tribunal held, following the judgment of the Supreme Court in Chief Conservator of Forests, Govt. of A.P. Vs. Collector & Ors, 2003 AIR(SC) 1805 that the entire proceeding resulting in the order of adjudication was a nullity on the ground that the Union of India through the Ministry of Railways, which was a necessary party, was not impleaded and was not put to notice at any stage of the proceeding and consequently the appeal filed by the Divisional Railway Manager, for the same reason, was held to be incompetent. A declaration was, therefore, made that the order of adjudication is a nullity.
(3.) Now it is not in dispute that the assessment was in respect of the Union of India through the Ministry of Railways. The Divisional Railway Manager, who is an employee of the Union of India or Ministry of Railway, is not the assessee. No show cause notice was issued to the Union Government. The adjudication did not take place against the Union Government. The order of adjudication and the demand that would be raised in pursuance thereof, would be enforced not against the Divisional Railway Manager but against the Union of India through the Ministry of Railways. Having regard to this position, it is but necessary that the proceedings commencing with the notice to show cause must be initiated against the Union of India through the Ministry of Railways.;