2015 (5) TMI 328 - AT - Customs

Doctrine of merger - Earlier Supreme Court dismissed appeal as non maintainable - Whether Tribunal has jurisdiction to decided appeal on merit - Held that - Inview of Apex Court decision in Kunhayammed and Others Vs. State of Kerala and Another 2000 (7) TMI 67 - SUPREME Court , 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 - In view of the above ruling of the apex Court, the jurisdiction of this Tribunal to entertain the review application on its merits is eclipsed in view of merger - Decided against assessee.

Summary

Issues: Jurisdiction of the Tribunal to entertain a review application after dismissal of civil appeals by the Supreme Court.

Analysis:
1. The petitioner sought rectification of a Final Order dismissing Customs Appeal Nos.C/250-253/2008 against an adjudication order dated 11.01.2008. The adjudication order found mis-declaration of virgin acrylic fibre and imposed penalties and duties under various legal provisions.

2. The petitioner filed an application for rectification of the Final Order, claiming that its request for additional evidence was not considered. The Supreme Court dismissed the petitioner's appeal against the Final Order, stating that civil appeals were not maintainable, granting liberty to pursue appropriate remedies.

3. The petitioner argued before the Tribunal that the Final Order was passed erroneously without considering additional evidence. The Tribunal examined the jurisdiction to entertain a review application after the Supreme Court's dismissal, citing the doctrine of merger and the principles outlined in Kunhayammed case.

4. The Tribunal referenced the Supreme Court's ruling that once leave to appeal is granted and appellate jurisdiction is invoked, the order passed in appeal attracts the doctrine of merger, regardless of reversal, modification, or affirmation. The jurisdiction of the High Court to entertain a review petition is lost after an appeal is preferred before the Supreme Court.

5. Consequently, the Tribunal held that its jurisdiction to entertain the review application was eclipsed by the merger of the Final Order in the Supreme Court's order dismissing the civil appeals. The application for review was deemed not maintainable and was rejected for the stated reasons.