TMI Blog2001 (12) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... he Modvat credit on capital goods by the applicant was validly before the Tribunal, on the basis of the doctrine of merger, and the Tribunal was duty bound to deal with this question in the appeal before it, even if the appeal before Commissioner (Appeals) was treated to be barred by time as has been held by the authorities below. (Para 4 of Tribunal's Order No. M/80/2001, dt. 9-3-2001 and Para 2 of Tribunal's Final Order No. A/2180/2000-NB(SM), dt. 17-10-2000). 4. Tribunal has the power to recall its Final Order No. A/2180/2000-NB(SM), dt. 17-10-2000 and pass a fresh order, in exercise of its power under section 35C(2) to rectify the mistakes apparent from the record, since the mistakes are to go to the root of the case and the rectification of the mistake can not be made otherwise than by recalling its earlier order. 5. In other words, whether the law laid down by Larger Bench of the Tribunal in 2000 (118) E.L.T. 77 - Para 9 is valid in all facts and circumstances including the facts and circumstances of this case (Paras 7 and 8 of Tribunal's Order M/80/2001-NB(SM), dt. 9-3-2001. Signatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who had passed the Order-in-Original appealed against. Aforesaid mistake was committed by the Peon-cum-Record Keeper of the Applicants who submitted an affidavit dated 12-10-2000 to this effect. Although the Assistant Commissioner Central Excise either ought to have returned the said appeal to the applicants or forwarded it to the office of the Commissioner (Appeals), New Delhi, yet he did not do anything and just slept over it. Applicants became aware of the said mistake around October, 1998 when they intended to avail of the Kar Vivad Samadhan (KVS) Scheme. Hence the applicants sent a copy of the said appeal to the Commissioner (Appeals) office on 5-11-1998. Commissioner (Appeals) without going into merits of the appeal dismissed the same as time barred because it had been filed well beyond the period of delay of three months upto which the Commissioner (Appeals) had the power to condone the delay after the expiry of normal period of three months for filing the appeal. Aggrieved against the said Order-in-Appeal dated 1-3-2000, applicants filed an appeal to the Tribunal, New Delhi. As would be observed from the grounds in the appeal before the Tribunal, Applicants made three basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an affidavit dated 14-4-2001 of the Consultant Shri C.S. Gupta, who argued the appeal of the applicants before the Tribunal clearly states that all the pleadings made in the memo of appeal before the Tribunal were pressed. Tribunal has found in Para 7 of its Miscellaneous Order No. M/80/2000/NB (SM), dated 9-3-2001 that a final order in an appeal passed by a duly constituted Bench cannot recall an order passed or issued : It is further held : "Under the cover of rectification of mistake, this Tribunal cannot exercise any power to recall an order validly passed". Quoting the above observation from a judgment of Larger Bench (comprising three member) of the Tribunal in the case of S/Shri Dinkar Khindria and Dinesh Khindria reported in [2000 (118) E.L.T. 77 (Tri. - LB) = 2000 (38) RLT 442 (Cegat-LB)], Tribunal, New Delhi appears to hold that even if a plea going to the root of the case is made and admittedly not dealt with by the Tribunal, it can not recall its earlier order to rectify the mistake in the earlier order even if recall is the only method by which mistake apparent from the record can be rectified. 4.The learned Counsel appearing on behalf of the petitioner, Mr. P.C. Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to appeal,"32. the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of this Court would result in superseding the decision under appeal attracting doctrine of merger. But if the same reasons had prevailed with this Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal." 8.Having heard the learned Counsel for the parties, we are of the opinion that the case of this nature, doctrine of merger, as such, has no application. 9.An appeal can be treated to be a regular appeal only when the delay in filing the appeal is condoned. In the instant case, the limitation in preferring the appeal had not and could not be condoned. 10.It is not a case where the appellant herein could take recourse to the provisions of Section 14 of the Limitation Act, 1963, provisions of which have no application to the present case. The appeals were filed before the Central Excise and Salt Commissioner, and the CEGAT, which are not courts. 11.Had the Limitation Act, 1963 been applicable, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y so that it could be presented before the competent authority without delay. No exception to the afore-mentioned proposition can be taken. But in the instant case, by reason of inaction on the part of the appropriate authority. Commissioner of Appeals could not have condoned the delay beyond the period of three months, in relation whereto he had no jurisdiction. 16.The decision in Mark Auto Industries v. CCE, New Delhi (supra) was counter to the contention of the learned Counsel for the appellant. In Para 8, it was held : Statement of law made by the Madras High Court that only"8. when the appellate authority entertains the appeal and deals with it on merits, the order original authority should be taken to have merged in the order cannot be stated as good law in view of the decision of the Supreme Court in V.M. Salgaocar P. Ltd. etc, v. Commissioner of Income Tax - 2000 (38) RLT 619. According to their Lordships, even when an appeal to the Supreme Court is dismissed by non-speaking order, the doctrine of merger applies. This must apply to the non-speaking orders passed by all appellate authorities as well." 17.However, as noted hereinbefore three Judges Bench of the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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