TMI Blog2010 (7) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... sibility of the deductions under the remaining six heads obviously because the assessee's appeal did not question the grant of such deductions. Admissibility of the said deductions could have been raised only by the Revenue who had lost its case qua those deductions before the adjudicating authority - The Tribunal obviously failed to notice this distinction and proceeded to apply the doctrine of merger rather mechanically. - order of the tribunal dismissing revenue's appeal set aside. - Civil Appeal No. 2059-2060 OF 2003 - - - Dated:- 6-7-2010 - JAIN D.K. AND THAKUR T.S. JJ. Ms. Radha Rangaswamy and Rahul Gupta, Advocates, for the respondents. Gourab Banerjee, Additional Solicitor-General of India (K. Swami, Ms. Sunita Rani Singh, B.K. Prasad and Mrs. Anil Katiyar, Advocates with him) for the appellants. JUDGMENT T.S. THAKUR, J. 1. These appeals have been filed under Section 35(L) (b) of the Central Excise Act, 1944. They are directed against an order dated 22nd July, 2002 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, whereby an appeal preferred by the Revenue against an order passed by the Commissioner of Central Excise has been dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orting the goods from the duty paid godown to the customers. 7. Trade discount given to the privileged customers. 8. Other trade discount by way of one or more bottles free of cost to customers." 4. The respondent filed a reply to the notice aforementioned upon consideration whereof the Principal Commissioner of Central Excise, Delhi passed an order in original dated 14th March, 2001 disallowing deductions to the extent of Rs.13,42,924/- on account of loss of beverages in the duty paid godown and a sum of Rs.27,50,072/- on account of loss in transit from the said godown to the customers and discount made on account of free supply of bottles of aerated water. Insofar as the remaining six heads under which deductions were claimed by the company the order in original accepted the said claim. 5. Aggrieved by the order aforementioned the respondent-company filed an appeal under Section 35(E)(1) of the Central Excise before the CEGAT who by a reasoned order dismissed the same, holding that the disallowance of deductions under the two heads referred to above was perfectly in order. A further appeal filed by the assessee before this Court was also dismissed on 23rd September, 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed earlier. 9. Appearing for the appellant Mr. Gourab Banerjee, learned Additional Solicitor General argued that the Tribunal had fallen in a palpable error in applying the doctrine of merger and dismissing the appeal filed by the Revenue. It was submitted that the doctrine of merger had no application to a case like the one at hand where the content and the subject matter of challenge in the two proceedings, namely, the appeal filed by the assessee and that filed by the Revenue were totally different. Reliance in support was placed by the learned counsel upon the decision of this Court in Kunhayammed Ors. v. State of Kerala Anr. (2000) 6 SCC 359. Reliance was also placed upon the decision of this Court in Mauria Udyog Ltd. v. Commissioner of Central Excise, Delhi II (2003) 9 SCC 139 to contend that the doctrine of merger is not a doctrine of universal application and that the difference in the subject matter or the content of the proceedings could take a decision inter se parties out of the purview of the said doctrine. 10. On behalf of the respondent-company it was per contra argued that the order passed by the adjudicating authority could not be split into two and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid conclusions apposite to the case at hand is in the following words: "44. To sum up, our conclusions are: .... (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. ..." 13. There is in the light of the above pronouncements no gainsaying that the doctrine of merger will depend largely on the nature of the jurisdiction exercised by the superior court and the content or the subject matter of challenge laid or capable of being laid before it. 14. Applying the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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