Home Case Index All Cases Customs Customs + HC Customs - 2022 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (11) TMI 708 - HC - CustomsApplicability of Doctrine of Merger - Rejection of petitioner’s application to recall its order - correctness of classification and consequent rate of duty adopted by the Assessing Officer - HELD THAT:- The order dated 4th October 2016 is a common order and if the application of three other applicants/appellants is allowed on the ground that certain documents placed on record have not been considered and those are not party specific documents, certainly that benefit, should also be extended to petitioner in this case. Another point is CESTAT, after hearing those appeals and considering the Government of India notification, has allowed those appeals in favour of other three parties. CESTAT took up the appeal filed by Fortune Marketing Pvt. Ltd. for final hearing (post the recall of the order dated 4th October 2016) and passed final order dated 4th April 2017 allowing the appeals and deciding the issue in favour of Fortune Marketing Pvt. Ltd. - the reason for allowing the rectification application to those appellants is because CESTAT accepted that it had not considered the clarification issued by the Department of Electronics and Information Technology, Government of India though it was produced before CESTAT. The doctrine of merger would not apply in this case. This is because the Apex Court while permitting leave to withdraw the appeal has not passed any order on merits. The appeal had not even been admitted. The order of the Apex Court is also not an order rejecting the appeal and, therefore, the said order cannot be said to be an order of affirmance of the order of CESTAT. That being the position, in our view, the doctrine of merger cannot be applied to the facts and circumstances of this case. The impugned order dated 26th August 2019 is set aside - petition disposed off.
|