TMI Blog2019 (5) TMI 1777X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 27 September, 2016 dismissing the Excise Appeal No. 1727 of 2010 filed by the Applicant. It is for the Applicant to move an appropriate application before the Supreme Court, if so advised. Learned counsel for the Appellant has stated that some protection may be granted by the Tribunal since it would take some time to initiate appropriate proceedings before the Supreme Court and in this context it is pointed out that the High Court had also granted protection to the Appellant for a limited period - This request made by the Appellant seems to be justified - while rejecting the three Applications bearing nos. 50437 of 2019, 50438 of 2019 and 50439 of 2019, it is directed that for a period of four weeks from today, no coercive action sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was ultimately converted into a Civil Appeal bearing no. 9042 of 2017 and by order dated 08 August, 2017 the said Civil Appeal was dismissed. The order is reproduced below : Civil Appeal No(s).9042 of 2017 xxxxxxx xxxxxxxx xxxxxxxxxx 1. Heard the learned counsel for the appellant and perused the relevant material. 2. We find no merit in this appeal. Admission refused. The civil appeal is, accordingly, dismissed. 4. It transpires that subsequently the Appellant filed a Suit for Recovery in the Delhi High Court with a prayer that DMRC should be directed to pay the amount of levy that was imposed upon the Appellant with interest. This was numbered as Extra Ordinary Original Civil Jurisdiction CS(COMM) No. 30/2018. It was br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashant Mehta had submitted that the Excise Department is seeking to enforce the demand of ₹ 1.60 crores and is in fact seeking to take coercive measures including shutting down of the factory. On the said date, it was directed that no coercive steps shall be taken by the Excise Department against the Plaintiff. 9. Mr. Yashish, Advocate has entered appearance on behalf of Excise Department, Jaipur Branch which is the relevant Commissionerate. He submits that the liability of the Plaintiff having been affirmed till the Supreme Court, no protection can be granted to the Plaintiff. A query was put by the Court to the Ld. Counsel if he disputes the passing of the order dated 28th December 2018 by the CESTAT in favour of Tata Motors Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the Plaintiff in respect of coercive measures being taken by the Excise Department and impose such conditions as it deems appropriate in the said application for interim relief. Remedies of the Plaintiff, upon such determination by CESTAT are left open. 6. In terms of the order of the Delhi High Court, Miscellaneous Application No. 50437 of 2019 has been filed by the Appellant with a prayer that certain parties, as directed by the High Court, may be impleaded. Miscellaneous Application No. 50438 of 2019 has been filed by the Appellant with a prayer that the order dated 19 January, 2010 for recovery of ₹ 1,60,09,717/-, as confirmed against the Appellant, may be stayed till the pendency of the Application. Miscellaneous Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court on 08 August, 2017 in a Civil Appeal, to review or modify its order dated 27 September, 2016 as the order of the Tribunal merged in the order passed by the Supreme Court. 10. In this connection, it will be pertinent to refer to the decision of the Supreme Court in Khoday Distilleries Ltd. Vs Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. [Civil Appeal No. 2432 of 2019 decided on 01 March, 2019]. The Supreme Court, after holding that the earlier judgment of the Supreme Court in Kunhayammed Ors. Vs State of Kerala Anr., reported in (2000) 6 SCC 359 laid down the correct position of law, summed up the legal position, from a cumulative reading of the various judgments, as follows : 27. From a cumulative reading of the variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC. (c) Once we hold that law laid down in Kunhayammed is to be followed, it will not make any difference whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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