2002 (6) TMI 59 - AT - Central Excise

Summary

Issues Involved:
1. Maintainability of the Revenue's appeal.
2. Application of the doctrine of merger.
3. Interpretation of Sections 35B and 35E of the Central Excise Act, 1944.

Summary:

1. Maintainability of the Revenue's Appeal:
The Revenue filed Appeal No. E/1530/2001 challenging the order-in-original dated 27-4-2000 by the Commissioner of Central Excise, which had dropped a demand of Rs. 8,45,84,484/- against the respondent but imposed a penalty of Rs. 25,000/- u/r 173Q for violation of Rule 173C of the Central Excise Rules. The assessee's appeal against the penalty was allowed by the Tribunal on 29-6-2000, holding that no penalty could be imposed when there is no duty demand. The Central Board of Excise & Customs directed the Commissioner to apply to the Tribunal for correct determination of the question of the legality of the Commissioner's order. The respondent-assessee contended that the appeal was not maintainable as the Commissioner's order had merged with the Tribunal's order dated 29-6-2000.

2. Application of the Doctrine of Merger:
The Tribunal examined whether the doctrine of merger applied, which would render the Revenue's appeal not maintainable. The Tribunal referred to the Supreme Court's decision in S.S. Rathore v. State of Madhya Pradesh, which established that the doctrine of merger applies to orders of Tribunals. The Tribunal also considered its own decision in CCE Meerut v. Bajaj Carpet Industries Ltd., where it was held that once an order is set aside by the Tribunal, the original order is not available for review. The Tribunal found no contrary view in CCE, Chandigarh v. Leader Engineering Works, as the facts were different.

3. Interpretation of Sections 35B and 35E of the Central Excise Act, 1944:
The Tribunal discussed the provisions of Sections 35B and 35E, noting that Section 35B allows any aggrieved person to file an appeal within three months, while Section 35E allows the Board to direct the Commissioner to apply to the Tribunal within one year. The Tribunal emphasized the need for harmonious interpretation of these provisions, as per the Supreme Court's guidelines in Sri Venkataraman Devaru & Ors. v. State of Mysore & Ors. The Tribunal concluded that the Revenue could take advantage of both Sections 35B and 35E for filing appeals.

Conclusion:
The Tribunal held that the appeal filed by the Revenue was not maintainable as the order impugned had already merged with the final order passed by the Tribunal on 29-6-2000, before any order was passed by the Board of Revenue u/s 35E(1). Consequently, the appeal filed by the Revenue was dismissed, and the cross-objection filed by the respondent-assessee was allowed.