2016 (11) TMI 1277 - AT - Central Excise

Doctrine of merger of appeals - scope of the word accordingly used in the order of the Apex Court - appellant contended that When Revenue failed to succeed before apex court against final order of Tribunal that order merged in the order of Apex court. Present appeal being a consequence of the final order of Tribunal there is nothing more to be contested by Revenue today. - Pre-deposit - Held that - the word accordingly used in that order is with reference to the matters covered against Revenue. Hence Revenue cannot plead today that the merits of the order passed by the Tribunal has not received scrutiny of the apex court. - the order of the Tribunal having merged in the dismissal order of the apex court this Bench has no jurisdiction to touch the merits of the case again and there is no further scope for Revenue to reopen its case. Accordingly the miscellaneous application is rejected and Appeal of the appellant is allowed. At this juncture it is submitted on behalf of Revenue that it may be granted opportunity to realize its dues. It may be stated that there is no bar in law to take appropriate action under law if that is not otherwise barred.

Summary

Issues:
1. Whether pre-deposit made by the appellant during the appeal's pendency should be refunded with interest in case of delay.
2. Effect of dismissal of the Revenue's appeal when the final order of the Tribunal merges with the apex court's dismissal order.

Issue 1: Pre-deposit Refund with Interest
The dispute revolves around the refund of the pre-deposit made by the appellant during the appeal process. Both sides referred to a Supreme Court order in Civil Appeal Nos.805 of 2006, which dismissed the appeals against the Revenue, citing a previous judgment. The Revenue argued that the dismissal of their appeal followed a specific decision and urged the Tribunal to consider their appeal in light of another case law. However, the appellant's counsel opposed the Revenue's submission, emphasizing that once a Civil Appeal is dismissed, the matter reaches finality, and there is no basis for reopening it. The Tribunal heard both sides and examined the records to determine the impact of the dismissal of the Revenue's appeal on the pre-deposit refund issue.

Issue 2: Merger of Tribunal's Order with Apex Court's Dismissal
The core issue is the effect of the dismissal of the Revenue's appeal on the final order of the Tribunal. The Tribunal analyzed the legal principles established by the Supreme Court in Kunhayammed Vs State of Kerala, which clarified the consequences of granting a Special Leave Petition (SLP) and subsequent dismissal or modification of the appeal. The Tribunal highlighted key propositions from the Kunhayammed case, emphasizing that when the appellate jurisdiction is exercised by the apex court, the impugned order merges with the appellate order. The Tribunal examined the Apex court's order dismissing the Revenue's appeal and concluded that the merits of the impugned order were scrutinized and dismissed by the court. Therefore, the Tribunal held that the dismissal order of the apex court precludes any reconsideration of the Revenue's appeal at the Tribunal level. Citing the legal principles from Kunhayammed's case, the Tribunal rejected the Revenue's miscellaneous application and allowed the appellant's appeal.

In conclusion, the Tribunal's judgment addressed the issues of pre-deposit refund with interest and the merger of the Tribunal's order with the apex court's dismissal order. By applying the legal principles established by the Supreme Court, the Tribunal ruled in favor of the appellant and rejected the Revenue's attempt to reopen the case. The judgment underscores the finality of the dismissal of the Revenue's appeal and the legal implications of such a dismissal on the Tribunal's order.