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TMI Blog2010 (1) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... pril, 2006 of the Commissioner (Appeals). The Department also filed an appeal agitating the allowance of credit on the capital goods which was rejected by the Commissioner (Appeals) vide order dated 26th July, 2007 on the ground that the order of the original authority got merged into his order dated 28th April, 2006 and therefore, no appeal could be heard by him. 3.2 The facts of the case in Appeal No. E/2832/2007 are similar. In October, 1995, a show cause notice was issued proposing denial of credit on a few capital goods. Vide order dated 15-12-2005, the original authority partly allowed credit on certain items and rejected the credit on other items. The party s appeal against credit disallowed was rejected by the Commissioner (Appeals) vide order dated 21st August, 2006. The Commissioner (Appeals) rejected the Department s appeals vide order dated 26-7-2007 on the ground of merger of order of original authority with his order dated 21-8-2006. 3.3 In other words, the Department s appeals against the orders of the original authority dated 19-12-2005 and 15-12-2005 have been disposed of by a common order dated 26th July, 2007. 4. Learned SDR submits that the issues before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Coimbatore reported in 2007 (217) E.L.T. 270 (Tri-Chennai) and in the case of C.C.E., Hyderabad v. Hari Steel Tubes reported in 2007 (212) E.L.T. 389 (Tri-Bang.) = 2007 (6) S.T.R. 186 (Tri.-Bang.). 6.1 I have carefully considered the submissions from both sides. An overview of appellate provisions relating to appeals before Commissioner (Appeals) can be narrated at this juncture. When any decision or order is made by a Central Excise Officer below the rank of Commissioner, the appeal lies to the Commissioner (Appeals). When the order of the original authority is totally against the party, the party naturally is entitled to file an appeal. The question of Department considering filing of appeal does not arise as the order is in favour of the Department unless the order is considered to be not legal or proper. Similarly, when the order of the original authority is totally in favour of the assessee/party, the question of assessee or the party concerned filing appeal does not arise. Only the Department can file the appeal as prescribed in law. The question of cross-objection by the party also does not arise inasmuch as the decision is entirely in favour of the party. 6.2 When the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with respect to different items, while in respect of some items contradictory findings were recorded by the Commissioner. Further, the Revenue also seeks reconsideration on the point of penalty. 30. The subject matter of the Revenue s appeal would thus appear to be quite distinct from that of the assessee s appeal. Applying the tests laid down in Madurai Mills Co. Ltd. and Kunhayammad (supra), it would follow that not only the subject matter of the two appeals is different, the Appellate Tribunal has no jurisdiction to suo motu grant any relief to the Revenue in the assessee s appeal, and therefore, the Revenue s appeal is not hit by the doctrine of merger. 31. I may observe that another test to determine whether the appeal is barred or hit by the doctrine of merger is whether the two orders - one already passed in the assessee s appeal and the other which may be passed in Revenue s appeal - can stand together or not. In other words, whether there will be conflict in the two orders so as not to stand together. Yet another test may be whether the decision/order in the previous (assessee s) appeal will operate as res judicata. Section 11 of the Civil Procedure Code contains th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances, cannot result in the dismissal of appellant s appeal by application of principle of merger. The said principle on the factual situation herein has no applicability whatsoever. The decision in Mauria Udyog Ltd. (supra) was rendered in the context of the Central Excise Act as compared to TVL. Jeevanlal Ltd. (supra) which had arisen under the Tamil Nadu General Sales Tax Act having different set of provisions, and I have, therefore, no difficulty in following the decision in Mauria Udyog Ltd. (supra) in preference to the Larger Bench decision in LML Ltd. case (supra) which was decided following TVL. Jeevanlal Ltd. A division Bench of the Tribunal in CCE v. Maha Lakshmi Dyg. Printing (I) Pvt. Ltd., 2006 (203) E.L.T. 412, has a similar view and following Mauria Udyog Ltd. held that the doctrine of merger does not apply when the subject matter of appeal is different. 9.1 The original authority dealing with a show cause notice is not expected to confirm entirely the proposals in the show cause notice or drop the proceedings. When the issues are independent and distinct, he can decide some issues in favour of the notice and decide some other issues against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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