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TMI Blog2001 (12) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... 17-10-2000). 3. The question on merits regarding correctness of availing the Modvat credit on capital goods by the applicant was validly before the Tribunal, on the basis of the doctrine of merger, and the Tribunal was duty bound to deal with this question in the appeal before it, even if the appeal before Commissioner (Appeals) was treated to be barred by time as has been held by the authorities below. (Para 4 of Tribunal's Order No. M/80/2001, dt. 9-3-2001 and Para 2 of Tribunal's Final Order No. A/2180/2000-NB(SM), dt. 17-10-2000). 4. Tribunal has the power to recall its Final Order No. A/2180/2000-NB(SM), dt. 17-10-2000 and pass a fresh order, in exercise of its power under section 35C(2) to rectify the mistakes apparent from the record, since the mistakes are to go to the root of the case and the rectification of the mistake can not be made otherwise than by recalling its earlier order. 5. In other words, whether the law laid down by Larger Bench of the Tribunal in 2000 (118) E.L.T. 77 - Para 9 is valid in all facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleging late submission of the prescribed declaration on 30-6-95 where in the capital goods had been declared to have been received on 18-6-1995. Applicants submitted a reply to the above demand show cause notice on 16-11-1995 explaining that inadvertently the date of the invoice had been mentioned as the date of receipt of goods. Thus the applicants requested for dropping the show cause notice. Applicant's submission was not accepted by the Assistant Commissioner of Central Excise who confirmed the demand of Rs. 1,47,000/- and directed recovery of the said amount. He also imposed a penalty of Rs. 20,000/- vide his Order-in-Original No. 87/97-98, dated 17-10-1997. Aggrieved against the above Order-in-Original dated 17-10-1997, Applicant filed on 16-12-1997 an appeal, addressed to the Commissioner (Appeals), New Delhi inadvertently in the office of the same Assistant Commissioner Central Excise who had passed the Order-in-Original appealed against. Aforesaid mistake was committed by the Peon-cum-Record Keeper of the Applicants who submitted an affidavit dated 12-10-2000 to this effect. Although the Assistant Commissioner Central Excise either ought to have returned the said appeal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent from the record u/s 35C of the Central Excise Act, 1944 (1 of 1944) but without success. ROM application has been dismissed on the erroneous ground that the said two pleadings stated at (i) and (iii) in Para 13 above were not pressed by the Consultant before the Tribunal during the course of personal hearing of the appeal on 17-10-2000. This finding of the ld. Member of the Tribunal is ex facie unsustainable because the Tribunal's Final Order No. A/2180/2000-NB(SM) which records that only the plea of condonation of delay in filing the appeal before Commissioner (Appeals) was made and no other plea raised in the memo of Appeal before the Tribunal was pressed. A close reading of Para 2 of Tribunal's Final Order No. A/2180/00-NB(SM), as reproduced in Para 6 of its Miscellaneous Order No. M/80/2001-NB (SM), also reveals that the said two pleadings were also pressed as is apparent from a part of last sentence "We may be heard on merits considering the same as filed in time." Nevertheless, an affidavit dated 14-4-2001 of the Consultant Shri C.S. Gupta, who argued the appeal of the applicants before the Tribunal clearly states that all the pleadings made in the memo of appeal bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reshold without assigning any reason, neither the principles of res judicata nor the doctrine of merger shall apply. When a special leave petition is dismissed by a speaking or reasoned order, still then, the doctrine of merger shall not apply but rule of discipline and Article 141 would be attracted or where the leave is granted and appeal is dismissed without reasons, merger results. In Kunhayammed & Ors. (supra), it has been held in relation to the doctrine of merger, as under : The doctrine of merger is"7. neither a doctrine of constitutional law nor a doctrine statutorily recognized. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times." Further in Para 32, it was held : It may be that in spite of having granted leave to appeal,"32. the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 33(1) of the Act was : "any assessee objecting to an order passed by an Appellate Assistant Commissioner under Section 28 or Section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him." 14.Thus, any order passed by the Assistant Commissioner, CEGAT could be appealed against to the Appellate Tribunal. Having regard to the afore-mentioned provisions, the Apex Court held that : "...There is thus abundant authority for the position that Section 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues, such as limitation and the like." 15.In Collector of C. Ex., Bhubaneswar v. Jayshree Chemicals Ltd. - 1997 (96) E.L.T. 625, the CEGAT as regards the claim of refund, held that when application had been filed before a wrong officer, it was his duty to return the same immediately so that it could be presented before the competent authority without delay. No exception to the afore-mentioned proposition can be taken. But in the instant case, by reason of inaction on the part of the appro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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