2012 (10) TMI 874 - AT - Customs

Doctrine of Merger Commssioner (Appeals) has rejected the review application - Commissioner (Appeals) has not decided the issue on its merit - held that - Commissioner (Appeals) has erred in dismissing the Review Application filed by the Department on the doctrine of merger. - Decision of Apex Court in Commissioner of Central Excise, Delhi Vs. Pearl Drinks Ltd. 2010 (7) TMI 10 - SUPREME COURT OF INDIA followed.

Summary

Issues:
1. Review application filed by the Revenue rejected by the ld. Commissioner (Appeals) based on the doctrine of merger and lack of signature on the application.
2. Dispute regarding the timing of the review application and the passing of the Order-in-Appeal.
3. Appeal for staying the operation of the Order-in-Appeal.

Issue 1: Review Application Rejection
The Revenue filed a review application which was rejected by the ld. Commissioner (Appeals) citing the doctrine of merger. The ld. Commissioner held that the original order had merged with the Order-in-Appeal, and thus, the review application had no basis. The Revenue contended that the doctrine of merger did not apply in this case and that the lack of signature on the application was a curable defect. The Tribunal noted that the ld. Commissioner did not decide the issue on its merit, referencing the Hon'ble Supreme Court's judgment in a similar case. The Tribunal found that the ld. Commissioner erred in dismissing the review application based on the doctrine of merger. Consequently, the Tribunal set aside the order and directed the ld. Commissioner to decide the issue afresh, allowing both parties to present supporting documents and granting a reasonable opportunity of hearing to the respondent.

Issue 2: Timing of Review Application
The consultant for the respondent argued that the review application was filed before the Order-in-Appeal was passed. However, the Tribunal decided to dispose of the appeal itself at that stage with the consent of both parties. This decision was made after hearing arguments from both sides, indicating that the timing of the review application was not a determining factor in the final outcome of the case.

Issue 3: Appeal for Stay
The Revenue filed an application for staying the operation of the Order-in-Appeal. However, the Tribunal decided to dispose of the appeal itself, indicating that the issues raised in the appeal needed immediate resolution. The Tribunal allowed the appeal by way of remand, setting aside the ld. Commissioner's order and directing a fresh decision on the matter, with both parties given the opportunity to present their case fully.

In conclusion, the judgment by the Appellate Tribunal CESTAT, Kolkata addressed the rejection of a review application, the timing of the application, and an appeal for staying the operation of an Order-in-Appeal. The Tribunal emphasized the importance of considering the merits of the case, set aside the original order, and directed a fresh decision on the matter, allowing both parties to present their arguments and evidence.