2005 (5) TMI 11 - AT - Central Excise

By the time the department s appeal against the OIO was taken up by the Commissioner (Appeals), the said order had already been set aside by the appellate authority in the appeal field by the assessee, whereby the order of the original authority had merged with OIA, against which the only remedy available to the Revenue was to prefer appeal to the Tribunal -Hence the appeal filed by the Revenue against the order of the original authority was not maintainable

Summary

Issues:
- Appeal filed by Revenue against dropping part of the demand of duty
- Applicability of the Larger Bench decision in CCE v. LML Ltd.
- Review of the order of the original authority by jurisdictional Commissioner

Analysis:

1. The appeal was filed by the Revenue against the dropping of part of the demand of duty by the original authority. The Commissioner (Appeals) allowed the party's appeal, leading to the department's appeal being dismissed on the ground of merger with the Order-in-Appeal No. 154/2002. The impugned order relied on the Tribunal's Larger Bench decision in CCE v. LML Ltd. The Revenue contended that the order of the original authority had been reviewed by the jurisdictional Commissioner before the Order-in-Appeal No.154/02 was passed, suggesting the Larger Bench decision might not be applicable. However, the Tribunal found no merit in this argument, stating that the department's appeal was not maintainable after 31-10-02 as the original authority's order had merged with the Order-in-Appeal No. 154/2002.

2. The Tribunal examined the chronology of proceedings and concluded that by the time the department's appeal was taken up by the Commissioner (Appeals), the original authority's order had already been set aside by the appellate authority in the appeal filed by the assessee. As a result, the order of the original authority had merged with Order-in-Appeal No. 154/2002, leaving the Revenue with the only remedy of appealing to the Tribunal. Therefore, the appeal filed by the Revenue against the original authority's order was deemed not maintainable after 31-10-02. The Tribunal upheld the impugned order, stating it was correct and dismissing the appeal.

In summary, the Tribunal dismissed the Revenue's appeal against the dropping of part of the demand of duty, citing the merger of the original authority's order with the Order-in-Appeal No. 154/2002. The Tribunal found no merit in the Revenue's argument regarding the applicability of the Larger Bench decision in CCE v. LML Ltd., stating that the appeal was not maintainable after a certain date due to the merger of orders.