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TMI Blog2009 (12) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... sha Bagchi, S/Shri N.M. Sharma, Bipin Garg, Advocates and Atul Gupta, C.S., for the Appellant. Shri Surender Shah, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Heard at length the learned Advocates for the applicants and learned DR for the respondent. Since common questions of law and facts arise in both these applications, they were heard together and are being disposed of by this common order. 2. These applications have been filed for rectification of the alleged mistake apparent on the face of the record on the following grounds :- "(i) That the applicants contention in para G.2 of the ground of appeal that if value of clearances of M/s. Super Fine Packaging is to be clubbed with the value of clearance of M/s. Box & Carton India Pvt. Ltd., they would be eligible to get the Cenvat credit of the duty) paid by M/s. Super Fine Packaging on various inputs that were used by them for manufacturing the goods. The applicants had enclosed invoices wise details of credit available to them on inputs as Annexure-60 to the Memorandum of Appeal in support of their submission. It was also mentioned in para G.2 that if the Commissioner intended to ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fy whether the applicants were really entitled for the quantum of the Cenvat credit claimed by them. It was further submitted that the invoices were in possession of the department as they were seized under panchnama and the factum of the possession of invoices with the department was apparent from the panchnama. If the Commissioner really wanted to verify the claim of the applicants in that regard nothing could have prevented the Commissioner from verifying the same by going through those invoices. This aspect was specifically raised before the Tribunal under ground G.2 in the memo of appeal and was argued before the Tribunal as is apparent from the order passed by the Tribunal and particularly from para 7 thereof. Being so it is apparent that inspite of all the documents being available before the Tribunal the same were not considered and it was wrongly observed that the applicants had not produced the documents for verification. It being the error apparent on the face of the record according to the applicants, the order needs to be rectified. 5. Learned Advocate for the applicants fairly conceded that the applicants had approached the Apex Court against the order dated 24-4-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rger and the effect of the orders which are passed in SLP proceedings as also orders which are passed after grant of SLP. Undoubtedly, the observations made in relation to the situation arising consequent to the orders passed in the proceedings in the nature of SLP and the proceedings arising subsequent to the disposal of such proceedings may not be directly applicable to the situation which will arise in case of appeals which are filed under the statutory provision like those found in Central Excise Act and similar such statutes. However, it is a settled doctrine of merger that once the appellate authority is seized with the matter, and particularly in relation to the merits of the case, whatever order is passed in such proceedings by the appellate authority that becomes a final order and becomes an executable order. In other words, once the proceedings in appeal are disposed of by an order by the appellate authority, the order passed by the subordinate authority, gets merged in such order. The Apex Court in Chandi Prasad and Others v. Jagdish Prasad and Others reported in (2004) 8 SCC 724 while dealing with the principle of merger held thus :- "The doctrine of merger is based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "In this view of the matter, we are, therefore, of the opinion that the doctrine of merger would only apply in a case when a higher forum entertains an appeal or revision and passes an order on merit and not when the appeal or revision is dismissed on the ground that delay in filing the same is not condoned. In our view, mere rejection of the revision petition on the ground of delay cannot be allowed to take away the jurisdiction of the Board, whose order forms a subject-matter of petition and Section 85(9) of the Act confers powers on the Board to reopen the case if such grounds for reopening the case are shown to exit". 11. Apparently, in the matter of Kondottyaparambanmoosa, the Apex Court held that the revision petition was disposed of on the ground of laches and not in relation to the merits of the case. Similar the decision in the case of Kunhayammed is that of a three-Judge Bench in comparison to two-Judge Bench decision in Kondottyaparambanmoosa. In Kunhayammed's case, the Apex Court had taken note of the decision in the matter of Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat and reference thereto finds in para 28 of the said decision and while arriving at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maligai Partnership Firm case, the order passed in the eviction proceeding initiated before the Rent Controller was subjected to appeal and further revision petition before the High Court. Matter was carried in special leave petition before the Apex Court where the respondents therein were present on caveat. Both the sides were heard through their Advocates and the special leave petitions were dismissed. Thereafter, the High Court entertained the review petitions which were filed highly belated and having condoned the delay, the orders were passed in the review petitions reversing the earlier order of the High Court. When the matter was carried before the Apex court, it was observed that the act of the learned single-Judge of the High Court was "subversive of judicial discipline". It is to be noted that it was a case where the review petition was filed after rejection of the SLP and not after the dismissal of the appeal. In the matter in hand, the applicants have approached for rectification of the order after the dismissal of the appeal by the Apex Court. 16. The present application is slated to have been filed under Section 35C(2) of the Central Excise Act, 1944. The said provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt that itself will not be a ground for the appellants to raise such issue before the Tribunal by way of fresh proceedings in the form of rectification application. It is settled law that the party is not entitled to raise the points in piecemeal by way of different proceedings in that regard. Though the principle of resjudicata comprised under Section 11 of the Civil Procedure Court is not directly applicable to such matters, yet the underlying principle would apply. If the party does not raise a point at an appropriate stage and the matter stands concluded by final order then the party would be debarred from raising such point thereafter by reopening the matter. That is principle embedded in explanation 4 of Section 11 of the CPC. Considering the same it is not permissible to allow the applicant to raise said issue under the guise of filing rectification of application. 20. Even otherwise, even on merits, there is no case. The grievance of the applicants is that the relevant invoices were already in the possession of the Commissioner, that the applicants had produced invoices wise details of the credit availed by them on the inputs under Annexure-60, copy of which was filed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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