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2015 (2) TMI 88 - MADRAS HIGH COURTWhether the Tribunal is justified in allowing the assessee's appeal against the impugned O.I.A. on account of the doctrine of merger while the subject matters of the assessee's appeal and the department's appeal before the Commissioner appeal against the common order in original are entirely different - Held that:- It is seen that the order of the Adjudicating Authority resulted in two appeals, one at the instance of the assessee and the other at the instance of the Revenue. In the earlier appeal filed by the assessee, namely Appeal No.63 of 2006 dated 12.7.2006, the Commissioner (Appeals) clearly held that the transportation charges should not be included in the assessable value for payment of duty. He further held that the work site could be a "place of delivery" and not "place of removal" and hence the cost of transportation from factory to the work site should not be included in the value for payment of duty. Hence, the entire show cause notice came to be dropped. In the light of such order, the plea of the Revenue is that there is no doctrine of merger in the present case cannot be countenanced. What the Revenue seeks to review in the further appeal against the adjudication order is that the demand was made in the show cause notice on the basis of sale price. When the Commissioner (Appeals) vide order dated 12.7.2006 in Appeal No.63 of 2006 has already held that the demand in the show cause notice is not maintainable, there is no scope for the Commissioner (Appeals) to review that order in the appeal filed by the Department. No reason to fall back upon this decision, as the facts in the present case, as stated above, are distinguishable. In the present case, the issue raised by the assessee and the Revenue is one and the same. When once the first Appellate Authority has set aside the order of the Adjudicating Authority setting aside the demand, thereby upholding the assessable value, it should be treated as the order passed by the Adjudicating Authority is merged with the Order-in-Appeal. Accordingly, we find no infirmity in the order of the Tribunal. - Decided against Revenue.
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