1985 (2) TMI 40 - HC - Customs

Summary

Issues:
1. Whether the doctrine of merger applies in the case?
2. Can the revisional authority entertain a revision filed by an appellant?

Analysis:

Issue 1: Doctrine of Merger
The case involved an appeal against an order of the Deputy Collector of Customs, which was rejected by the Appellate Collector as time-barred. The respondent then filed a revision petition to the Central Board of Excise and Customs, which was rejected citing merger of the original order with the appellate order. The court held that the principle of merger does not apply in this case as there was no effective appeal before the appellate authority. The rejection of the appeal as time-barred does not constitute a merger. Even if the principle of merger applied, the revision petition against the original order should be treated as an appeal against the appellate order, making it entertainable.

Issue 2: Revisional Authority's Power
The Central Government Standing Counsel argued that since an order was passed by the appellate authority under Section 128, the Board could not entertain a revision under Section 130 directly against the original authority's order. The court analyzed Section 130(1) of the Customs Act, which allows revision by the Board in respect of any order passed by a Customs officer. The exclusion of orders passed in appeal under Section 128 does not prevent the Board from entertaining a revision petition against the original authority's order. As there was no effective appeal before the appellate authority, the Board should have entertained the revision petition filed by the respondent. The court dismissed the appeal and directed the first appellant to consider the revision petition on merits within three months.

In conclusion, the High Court of Madras held that the doctrine of merger did not apply in this case, and the revisional authority had the power to entertain the revision petition filed by the respondent. The court dismissed the appeal and granted three months for the first appellant to dispose of the revision petition.