2007 (6) TMI 401 - AT - Central Excise

Summary

Issues: Merger doctrine application in appeal process; Maintainability of department's appeal against Commissioner (Appeals) order.

Analysis:
1. Merger Doctrine Application in Appeal Process:
- The case involved the clearance of 'pre-stressed concrete pipes' to a work site for a water supply scheme, with a dispute arising over the assessable value for duty payment.
- The original authority demanded duty from the assessee, which was set aside by the Commissioner (Appeals) in Order-in-Appeal No. 63/2006, dated 12-7-2006, ruling that the work site was not a 'place of removal.'
- The department later filed an appeal against the original authority's decision, which was allowed by the Commissioner (Appeals) in Order-in-Appeal No. 25/2007, dated 27-3-2007, confirming the duty demand and imposing a penalty.
- The Tribunal found that the original authority's order had merged in the Commissioner (Appeals) order of 12-7-2006, and therefore, there was no adjudication order beyond that date to be appealed against.
- Citing the doctrine of merger, the Tribunal held that since there was no order of adjudication to review at the time of the department's appeal, it was not maintainable, as per the decision in Commissioner of Central Excise, Chennai-II v. Petpak Pvt. Ltd. [2006 (206) E.L.T. 1004 (Tri.-Chennai)].

2. Maintainability of Department's Appeal Against Commissioner (Appeals) Order:
- The Tribunal concluded that the department's appeal filed after the Commissioner (Appeals) order was not maintainable due to the doctrine of merger, as there was no original adjudication order to review at the time of filing the appeal.
- As a result, the impugned order was set aside, and the appeal was allowed, emphasizing the legal principle that an appeal against a non-existent adjudication order is not tenable.

In summary, the Tribunal's judgment focused on the application of the merger doctrine in the appeal process, highlighting that an appeal against an order that had already merged with a higher authority's decision is not maintainable. This legal principle was crucial in setting aside the department's appeal and allowing the appellant's appeal against the Commissioner (Appeals) order.