TMI Blog1991 (3) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... 84). So kindly file separate appeals against each order-in-appeal with fees of Rs. 200/- for each case." Since there are divergent views where a common order has been passed by the Collector (Appeals) disposing of a number of appeals, whether a single appeal should be filed or as many appeals as the number of appeals decided by the Collector (Appeals) by a common order. The Hon'ble President has constituted a Larger Bench for deciding the preliminary point. Accordingly, we proceed to decide the same. 2. Shri R.K. Jain, the learned consultant has appeared on behalf of the appellant. He has argued that there are 13 orders-in-original passed by the adjudicating authority and being aggrieved from those orders, 13 appeals were filed to the Collector (Appeals). Collector (Appeals) has disposed of the same by a common order, Shri R.K. Jain, the learned consultant had put emphasis on the word "a". He has referred to para No. 3 of the preamble of the order-in-appeal which reads as under :- "3. An appeal to the Appellate Tribunal should be made in form E.A. 3 in quadruplicate and be addressed to the Registrar of the said Appellate Tribunal." Shri Jain has referred to the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, there was no occasion to ask the appellant to file supplementary appeals. Shri Jain, the learned consultant fairly stated that there are judgments against him also. He referred to the following judgments :- (i) 1983 (14) E.L.T. 1956 Indian Oil Corporation Ltd. (Haldia Refinery) v. Collector of Central Excise, Calcutta. "Although it is not correct to say that there was no legal bar to the filing of a single appeal against five assessment orders yet filing of one appeal against five assessment orders was not a nullity. Therefore, in such a situation, the appellants should be given an option to either file five separate appeals against the five assessment orders with requisite court fee stamps or restrict the scope of the single appeal filed before the Appellate Authority to one of the assessment orders." (ii) 1985 (21) E.L.T. 113 Indian Oil Corpn. Ltd., Haldia Refinery v. Collector of C. Ex., Calcutta. "Single appeal filed against several orders on a common issue not sustainable but dismissal of such an appeal as nullity is wrong, the appellate authority should give time for filing separate appeal for each assessment." (iii) 1987 (29) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no analogy or parallel between a tax appeal and an appeal, say, in civil cases. A civil appeal, like a law suit in the court of first instance out of which it arises, is really and truly an adversary proceeding, that is to say, a controversy or tussle over mutual rights and obligations between contesting litigants ranged against each other as opponents. A tax appeal is quite different." Shri Jain cited another decision of the Supreme Court in the case of Narhari and Others v. Shanker and Others reported in AIR 1953 SC 419 where the Hon'ble Supreme Court had held as under :- "From the decree of Trial Court in favour of the plaintiff two separate appeals were taken by two sets of the defendats. The appellate Court allowed both the appeals and dismissed the plaintiff's suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal. Two decrees were prepared. The plaintiffs preferred two appeals. One of the appeals was time-barred and on the principle of res-judicata the High Court dismissed both the appeals. Held that it was not necessary to file two separate appeals in this case. The question of res-judicata arose only when there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpetent to adopt procedure to achieve quick justice -No vested right in procedure - Litigation involving payment of huge amount of court fees - Parties if directed to seek regular remedies possibility of inordinate lapse of time before litigation is finally decided - The Supreme Court directed the parties to arbitration thus ensuring quick justice." (ii) (1979) 118 ITR 412 Commissioner of Income-tax, West Bengal v. Rupa Traders appeal against best judgment assessment as well as refusal of registration of firm is justified." (iii) (1987) 167 ITR Ansari Jewellers v. CIT "One composite appeal against assessment and refusal of registration -Competent - Two separate appeals not necessary." (iv) (1985) 20 Taxman 47 (AP) "Whether where ITO passes a common order purportedly under Section 143 in respect of assessment of income as well as refusal of registration to assessee - firm, assessee can file a common appeal against such assessment and refusal of registration - Held, yes." (v) Messrs Nirali Enterprises v. Union of India and Others Writ Petition No. 2037 of 1990 [1990 (50) E.L.T. 497 (Bom.)] Shri R.K. Jain, the learned consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt - Supreme Court order would also govern the case of the other party. He has also cited a judgment of the Supreme Court in the case of East India Commercial Co. Ltd. v. Collector of Customs, Calcutta reported in AIR 1962 SC 1893. Lastly Shri Jain has again argued that there is a change in the trend. Litigation as far as possible should be reduced to the minimum and a single appeal should be entertainable where Collector (Appeals) has disposed of a number of appeals by a common order. 5. We have heard both the sides and have gone through the facts and circumstances of the case. We have looked into the provisions of law. Section 35B of the Central Excises and Salt Act, 1944 provides for the filing of the appeal before the Tribunal. Sub-sections (1) and (3) of Section 35B are reproduced below :- (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Collector of Central Excise as an adjudicating authority; (b) an order passed by the Collector (Appeals) under Section 35A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether a single appeal against a common order disposing of multiple appeals is entertainable or multiple appeals have to be filed. He had argued that a proceeding for assessment cannot be equated with a civil dispute and there is difference in tax appeal and civil appeal. We have given due consideration to the arguments put forth by Shri R.K. Jain, the learned consultant. Shri Jain has laid heavy reliance on the judgment in the case of Narhari and Others v. Shankar and Others reported in AIR 1953 SC 419 where the Hon'ble Supreme Court had held as under :- "From the decree of Trial Court in favour of the plaintiff two separate appeals were taken by two sets of the defendants. The appellate Court allowed both the appeals and dismissed the plaintiffs' suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal. Two decrees were prepared. The plaintiffs preferred two appeals. One of the appeals was time-barred and on the principle of 'res judicata' the High Court dismissed both the appeals. Held that it was not necessary to file two separate appeals in this case. The question of 'res judicata' arose only when there were two suits. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so as to make the other suit so far as the Trial Court was concerned, a subsequent suit in the proceedings. When two suits are decided by a single judgment the expressions "former suit" and "subsequent suit" as contemplated by Section 11, CPC have no significance. The principle of res judicata is based on the maxim that no one shall be vexed twice over the same matter. The question of res judicata so far as the Trial Court is concerned where two suits are consolidated and tried simultaneously as a single controversy and as a single proceeding cannot arise. I am supported in this view by a judgment of the Full Bench of the Allahabad High Court in Jai Narain Har Narain v. L. Bulaqi Das - AIR 1969 All. 504. Ahmed Ali Khan's case, AIR 1947 Oudh 74 (supra) is distinguishable on facts. That was not a case of common judgment in the consolidated cases." It is a settled law that when the appellate court decides an appeal, decree of the Trial Court merges in the decree of the appellate court and the appellate court passes a fresh decree. These were the observations of Andhra Pradesh High Court in the case of Kerala Transport Co., Hyderabad and etc. v. Atul Kumar Agarwal and etc. reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant to restrict the single Appeal filed to one only of the refund claims. For, it is axiomatic in law that there should be as many Appeals as there are original orders, sought to be contested. Even where two or more claims have been adjudicated together and a common order made, that order is to be read as an order separately in each one of the claims and as many Appeals filed as there are orders which are desired to be contested. In the Civil Procedure Code, for example, it is provided in S. 96 that an Appeal shall be from every decree passed. A "decree" is the formal expression of an adjudication which so far as the Court expressing it, conclusively, determines the right of the parties with regard to all or any of the matters in controversy in the suit [S. 2(2) of the CPC]. Where a plurality of suits are disposed of by a common judgment, there are as many separate decrees drawn as there are suits disposed of and, necessarily, Appeals have to be filed against each decree separately, failing which such of the decrees not appealed against become final. An Order-in-Original i.e., in adjudication, is something like a decree. If not appealed against, it becomes final. Likewise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced below :- "4. At the very outset, the Appellant's counsel Shri A.K. Bhattacharjee was required to state how one single Revision application could maintain against dismissal of five different claims for refund and four appeals, albeit, by a common order. If one single Revision cannot maintain the counsel was required to identify any single appeal to the Appellate Collector or claim for refund which he would like to pursue in the instant proceedings. 5. The learned counsel sought to justify a single Revision of the orders in four separate appeals in respect of five claims for refund concerning five different consignments imported on diverse dates on the ground that it was, after all, one single order in appeal of the Appellate Collector which was required to be revised, and that it was a common order relating to five separate claims for refund is not of any consequence. His contention was obviously untenable. He, however, offered to pay the fees in respect of the other remaining three appeals and prayed for treating the Single Appeal No. 489/81-C as four different appeals and for condonation of delay. The request was acceded to in view of the prevailing practice with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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