2017 (10) TMI 1479 - AT - Central Excise

Doctrine of merger - Scope of SCN - case of appellant is that the department has raised the fresh penalty which was not in the original orders passed by the department - HELD THAT - For the period under consideration, the matter finally had reached to the Hon ble Supreme Court where all the orders were merged in the order passed by the Hon ble Supreme Court as per the doctrine of merger. If any issue was not contested or raised, the same cannot be raised again before the Tribunal - However, the appellant is always at the liberty to raise the issue before the Supreme Court by way of Interim Application, if advised so. Appeal disposed off.

Summary

Issues:
Appeal against Order-in-Appeal 05/2014 dated 9-4-2014 for the period April 1997 to February 2001.

Analysis:
The appellant, engaged in the fast-food business, appealed against an order after the Hon'ble Supreme Court's decision against them on classification issues. The department raised fresh demands post the Supreme Court order, which the appellant challenged in the High Court and Supreme Court. The appellant contended that the department wrongly imposed fresh penalties not in the original orders and argued against the time-barred extended period application.

The Tribunal noted that all issues had merged with the Supreme Court's order under the doctrine of merger, preventing re-raising of unaddressed matters. While declining intervention in the impugned order, the Tribunal emphasized the appellant's right to approach the Supreme Court for unresolved issues through an Interim Application.

However, the Tribunal criticized the department for raising fresh penalties post-Supreme Court order, highlighting the potential for such penalties to be set aside. In the interest of justice and judicial propriety, the Tribunal expressed disapproval of the department's actions regarding the fresh penalties.

Ultimately, the Tribunal disposed of the appeal, emphasizing the importance of the Supreme Court's order and advising the appellant on the appropriate legal recourse for unresolved issues.