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2018 (9) TMI 18 - AT - Central ExciseReview of Order - Doctrine of merger - application under Order 47 Rule 1 of C.P.C. - Held that:- The said provision can be attracted in case the appellant was not able to produce the documents which were beyond their control before this Tribunal while considering the appeal filed by the appellant - in this case initially the order of this Tribunal dated 19.03.2013 was challenged before the Hon'ble High Court wherein the appeal has been dismissed in limine in the said order was also carried before the Hon'ble Apex Court wherein also the appeal filed by the appellant is dismissed in limine. Doctrine of merger - Whether the order of this Tribunal has merged with the order of the Hon'ble Apex Court or not? - Held that:- The said issue came up before the Hon'ble Apex Court in the case of Kunhayammed Vs. State of Kerala [2000 (7) TMI 67 - SUPREME COURT], wherein the Hon'ble Apex Court has examined the issue when the order of this Tribunal merged with the order of the Superior Court and the Hon'ble Apex Court, where it was held that The Legislature has taken care to confer the jurisdiction to review on the High Court as to such appellate orders also against which though an appeal was carried to the Supreme Court, the same was not admitted by it. An appeal would be said to have been admitted by the Supreme Court if leave to appeal was granted - Admittedly, in the case in hand, the Hon'ble High Court as well as the Hon'ble Apex Court has not passed any speaking order, in that circumstances, doctrine merging is not applicable to the facts of the case. As the appellant has filed an application for Review of the order of this Tribunal, although the appellant has filed an application under order 47 Rule 1 of C.P.C. 1908, but, the said application is in nature of application for rectification of mistake and the same can be filed under Section 35C (2) of the Central Excise Act, 1944. The purchase order which was sought by this Tribunal were not in the possession of the appellant, therefore, the observation of this Tribunal "that as the documents were in the possession of the appellant, there is abuse in process of law on behalf of the appellant" is mistake apparent on record - the matter is remanded in limited purpose for verification of purchase orders in question and consideration thereof on merits - application disposed off.
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