TMI Blog2022 (11) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... R, JJ. Mr. Sriram Sridharan for petitioner in both petitions. Mr. J.B. Mishra a/w. Mr. Satyaprakash Sharma for respondents. P.C. : 1. Since both petitions involve the same issue, they are being disposed by this common order. WRIT PETITION NO.3616 of 2021 2. Via three refund applications dated 22nd May 2020, petitioner had applied to respondents seeking refund of the following : Sr.No. Details of Bill of Entry Details of Challan discharging Customs Duty Customs Duty (in INR) 1 7153254 dated 07.03.2020 2030573712 dated 16.03.2020 17,42,830 2 7249973 dated 16.03.2020 2030659662 dated 28.03.2020 15,15,711 3 7306536 dated 19.03.2020 2030713167 dated 28.03.2020 35,06,384 Total 67,64,925 3. Vide three impugned orders, all dated 17th February 2021, responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 4,78,67,608 7. Thereafter, petitioner filed Appeal No.C/85678/15 before the CESTAT challenging the Order-in-Original dated 28th November 2014. This appeal was filed after the enactment of the Finance Act, 2014 which substituted Section 129E of the Customs Act, 1962. Vide the substituted Section 129E, an appeal to the CESTAT could only be entertained if the appellant deposited 7.5% of the duty under dispute. Vide paragraph 4.2 of Circular No.984/8/2014-CX dated 16th September 2014, the CBEC provided that there would be no recovery of the balance amount, i.e., the amount in excess of the 7.5% of the duty deposited in terms of Section 129E till the disposal of the appeal by the Tribunal. Further, vide paragraph 3.1 of the same Circular, it was stated that any payments made during investigation proceedings can be considered towards the pre-deposit mandate imposed by Section 129E of the Customs Act. Since appellant (petitioner) had already paid Rs.4,78,67,608/- (well in excess of 7.5% of the total demand of Rs.5,23,16,494/- imposed vide Order-in-Original dated 28th November 2014) during the investigation proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opment, petitioner filed an application before the Apex Court for bringing on record the rectification of mistake order dated 13th December 2016 passed by CESTAT. Subsequently, the registry of the Apex Court also prepared an office report confirming the filing of this application. Petitioner had decided to file a rectification application to CESTAT. Hence, on 3rd March 2017 petitioner sought leave of the Apex Court to withdraw the appeal that it had preferred under Section 130E of the Customs Act, 1962. The Apex Court granted leave and civil appeal was dismissed as withdrawn. 5.Subsequent to this, petitioner filed an application before CESTAT for rectification of mistake. The said application came to be dismissed by an order dated 26th August 2019 which is impugned in this petition. According to CESTAT, by filing the appeal before the Apex Court petitioner has exhausted its remedy and withdrawal of the appeal subsequent to invoking the jurisdiction of the Apex Court to avail of a provision in law encoded for rectification of a mistake without express leave of the Court to do so was not permissible and, therefore, the application came to be dismissed. 6. Heard the counsels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State has been allowed, the net result would be that the High Court s judgment which held that the proceedings under the ULC Act were vitiated, stood merged in the decision of the Apex Court in State of A.P. V/s. N. Audikesava Reddy. In the case at hand (a) it is a statutory appeal and (b) no leave was granted or any order of admission was passed. 10. Mr. Mishra also relied upon judgment of the Apex Court in Pernod Ricard India Pvt. Ltd. V/s. Commissioner of Customs. In the said judgment, the Apex Court has held that once a statutory right of appeal is invoked, dismissal of appeal by the Supreme Court, whether by a speaking order or non speaking order, the doctrine of merger does apply. Again this judgment is not applicable in as much as in the case at hand, there was no order of dismissal of the statutory appeal. Petitioner wanted to withdraw the appeal and permission to withdraw the appeal was simplicitor granted. 11. Mr. Mishra also relied upon a judgment of the Apex Court inSarguja Transport Service V/s. State Transport Appellate Tribunal, M.P. Gwalior and Ors. Mr. Mishra submitted that in that case petitioner had withdrawn the petition from the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) have been allowed by CESTAT. Only petitioner is left out. (e) the orders passed in the rectification applications by CESTAT were also filed by petitioner in the Apex Court. (f) the doctrine of merger, in our opinion, 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. (g) gross injustice would be caused to petitioner if this petition is not allowed. 13. In the circumstances, we set aside the impugned order dated26th August 2019 and direct CESTAT to consider petitioner s appeal on merits once again. The Appeal No.C/85678 of 2015 be heard and disposed preferably within twelve weeks. 14. Petition disposed. 9. Since the Appeal No.C/85678/15 of petitioner has been restored to the CESTAT, no recovery in excess of 7.5% of the duty in dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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