2018 (9) TMI 18 - AT - Central Excise

Review of Order - Doctrine of merger - application under Order 47 Rule 1 of C.P.C. - Held that - The said provision can be attracted in case the appellant was not able to produce the documents which were beyond their control before this Tribunal while considering the appeal filed by the appellant - in this case initially the order of this Tribunal dated 19.03.2013 was challenged before the Hon ble High Court wherein the appeal has been dismissed in limine in the said order was also carried before the Hon ble Apex Court wherein also the appeal filed by the appellant is dismissed in limine. Doctrine of merger - Whether the order of this Tribunal has merged with the order of the Hon ble Apex Court or not? - Held that - The said issue came up before the Hon ble Apex Court in the case of Kunhayammed Vs. State of Kerala 2000 (7) TMI 67 - SUPREME COURT , wherein the Hon ble Apex Court has examined the issue when the order of this Tribunal merged with the order of the Superior Court and the Hon ble Apex Court, where it was held that The Legislature has taken care to confer the jurisdiction to review on the High Court as to such appellate orders also against which though an appeal was carried to the Supreme Court, the same was not admitted by it. An appeal would be said to have been admitted by the Supreme Court if leave to appeal was granted - Admittedly, in the case in hand, the Hon ble High Court as well as the Hon ble Apex Court has not passed any speaking order, in that circumstances, doctrine merging is not applicable to the facts of the case. As the appellant has filed an application for Review of the order of this Tribunal, although the appellant has filed an application under order 47 Rule 1 of C.P.C. 1908, but, the said application is in nature of application for rectification of mistake and the same can be filed under Section 35C (2) of the Central Excise Act, 1944. The purchase order which was sought by this Tribunal were not in the possession of the appellant, therefore, the observation of this Tribunal that as the documents were in the possession of the appellant, there is abuse in process of law on behalf of the appellant is mistake apparent on record - the matter is remanded in limited purpose for verification of purchase orders in question and consideration thereof on merits - application disposed off.

Summary

Issues:
1. Review application under Order 47 Rule 1 of C.P.C. 1908 for pointing out errors in the Tribunal's order.
2. Condonation of delay in filing the review application.
3. Interpretation of provisions of Order 47 Rule 1 of C.P.C. 1908.
4. Doctrine of merger of Tribunal's order with higher court orders.
5. Application for rectification of mistake under Section 35C (2) of the Central Excise Act, 1944.

Analysis:
1. The appellant filed a review application under Order 47 Rule 1 of C.P.C. 1908 to highlight errors in the Tribunal's order dated 19th March 2013. The appellant argued that certain documents crucial to the case were not produced as they were in the possession of the investigating team. The Tribunal observed that without these documents, it was not possible to agree with the appellant's contentions. The appellant sought a remand to present the purchase orders for consideration. The Tribunal, after considering the reasons for the delay in filing the review application, condoned the delay and allowed the application for review.

2. The delay in filing the review application was explained by the appellant due to legal advice sought after the dismissal of their appeal by the Hon'ble Apex Court. The appellant faced health and financial issues, leading to the delay. The Tribunal, satisfied with the reasons provided, granted condonation of the delay, allowing the review application to proceed.

3. The Tribunal examined the provisions of Order 47 Rule 1 of C.P.C. 1908 to determine the applicability of the review application. It was noted that the provision allows for a review in cases where new evidence or errors apparent on the record are discovered. The appellant's inability to produce certain documents crucial to the case was considered under this provision.

4. The issue of the doctrine of merger arose concerning whether the Tribunal's order merged with the higher court orders. Citing precedents and guidelines, the Tribunal clarified that since the High Court and the Apex Court did not pass speaking orders, the doctrine of merger did not apply in this case. Therefore, the Tribunal retained jurisdiction to consider the review application.

5. While the appellant filed the review application under Order 47 Rule 1 of C.P.C. 1908, the Tribunal noted that the nature of the application was akin to rectification of mistake under Section 35C (2) of the Central Excise Act, 1944. Referring to a Bombay High Court observation, the Tribunal emphasized the importance of disposing of appeals on merits without unnecessary delays. Considering the unavailability of crucial documents with the appellant, the Tribunal recalled its earlier finding and remanded the matter to the adjudicating authority for a fresh decision based on the purchase orders in question.