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2019 (7) TMI 762 - AT - Central ExciseMaintainability of appeal - whether the present appeal should be dismissed for the reason that the two Appellate orders deciding the same issue between the same parties, had attained finality? HELD THAT:- In this connection it would be pertinent to refer to the decision of the Supreme Court in SHEODAN SINGH VERSUS SMT. DARYAO KUNWAR [1966 (1) TMI 77 - SUPREME COURT] - The Supreme Court held where the trial court decides two suits having common issues on merits and two appeals are filed out which one appeal is dismissed on a preliminary ground like limitation or default in printing, the result would be that the Trial Court decision stands confirmed and so the decision of the Appellate Court will then operate as res-judicata and the remaining appeal would have to be dismissed. Thus, for this reason the remaining two appeals were rightly dismissed by the High Court because the Trial court had decided all the four suits on merits, including the decision on the common issues. It would also be useful to refer to the decision of the Supreme Court in NARAYANA PRABHU VENKATESWARA PRABHU VERSUS NARAYAN PRABHU KRISHNA PRABHU & ORS. [1977 (1) TMI 163 - SUPREME COURT] . Two suits were filed in this case and thereafter two appeals were filed against the decrees of the Trial Court. The High Court heard both the Appeals together and decided the common issue resulting in two decrees, but only one appeal was filed in the Supreme Court. It is in this context that the plea of res judicata was raised. The Supreme Court dismissed the appeal that was filed on the ground of res judicata. In the present case, the Commissioner (Appeals) decided three appeals by a common order in favour of the assessee. The Revenue initially assailed all the three orders but by filing one appeal before the Tribunal. Subsequently, in view of the application filed by the Revenue, two appeals were dismissed as withdrawn. The present appeal before the Tribunal is confined to only one order passed by the Commissioner (Appeals) - Though res judicata may not strictly apply to the orders passed by the Commissioner (Appeals), but the aid of such principles can be taken. In the present case if this appeal is allowed, two inconsistent orders will come into existence. The present appeal, therefore, is liable to be dismissed for this reason. The appeal filed by the Revenue is dismissed.
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