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TMI Blog2012 (5) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... n and not on merits that order would not merge with the orders passed by the first appellate authority - High Court was justified in rejecting the request made by the assessee for directing the revenue to state the case and also the question of law for its consideration and decision against assessee. - Civil Appeal No. 5049 OF 2003 - - - Dated:- 19-4-2012 - H L Dattu And Anil R Dave, JJ For Appellant : Mr. P C Jain, Adv. Mr. Rajesh Kumar, Adv. For Respondent : Mr. Harish Chandra, Sr. Adv. Mr. Ajay Sharma, Adv. Ms. Shamshravish Rein, Adv. For Mr.A.K.Sharma , Adv for Mrs Anil Katiyar ,Adv. JUDGEMENT 1. This Civil Appeal is directed against the judgment and order dated 21.12.2001 passed by High Court of Delhi at New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued to the assessee , inter alia, directing it to show cause to the Assistant Commissioner instead of the Deputy Collector, as mentioned in the Show cause notice dated 11.10.1995. The assessee was further directed to show cause as to why the penalty under Section 11AC should not be imposed and, further, interest should not be recovered under Section 11AB of the Act. 3. In its reply dated 16.11.1995 and 26.6.1997 to the Show cause notice, the assessee had submitted that it had received the said goods in the factory only on 30.9.1995, however, had wrongly mentioned the date of receipt of said goods as 18.6.1995 in its declaration filed under Rule 57T due to inadvertence, which was actually the date of invoice issued by the supplier. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeal. Along with the appeal, the assessee had also filed an application under Section 5 of the Limitation Act, 1963 explaining the delay in filing the appeal. 6. The first appellate authority, being of the opinion that it has no powers to condone the delay beyond the prescribed period, has rejected the appeal vide its Order dated 1.3.2000. Aggrieved by the same, the assessee had carried the matter by way of Second Appeal before the Tribunal. The Tribunal, by its judgment and order dated 17.10.2000, confirmed the orders passed by the first appellate authority. Thereafter, the assessee had filed an application for rectification of the judgment and orders passed by the Tribunal on the ground that the Tribunal ought to have consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould merge with the orders passed by the first appellate authority and, therefore, the Tribunal ought to have considered the appeal filed by the assessee not only on the ground of limitation but also on merits of the case. To buttress his arguments, the learned counsel has drawn our attention to the observations made by this Court in the case of Collector of Customs, Calcutta, Vs. East India Commercial Co.Ltd ., AIR 1963 1124, Shyam Sunder Sarma Vs. Panllalal Jaiswal , 2005 (181) ELT 163 (SC), Kunhayammed Vs. State of Kerala, 2001 (129) ELT 11 (SC) and the decision of the Tribunal in the case of Mark Auto Industries Vs. CCE , New Delhi, 2000 (41) RLT 756 ( CEGAT ) . 8. In reply to the submissions made by learned counsel for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition, we must hold that since the earlier revision petition was not decided on merits, the doctrine of merger cannot be applied to the facts and circumstances of the present case. 10. In this connection, the observations made by this Court in the case of Chandi Prasad Ors . ( supra ), needs to be reproduced, which are as under: It is trite that when an appellate court passes a decree, the decree of the trial court merges with the decree of the appellate court and even if and subject to any modification that may be made in the appellate decree, the decree of the appellate court supersedes the decree of the trial court. In other words, the merger of a decree takes place irrespective of the fact as to whether the appellate cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee on merits. The assessee's stand before the Tribunal and before this Court is that the orders passed by the adjudicating authority would merge with the orders passed by the first appellate authority and the Tribunal ought to have considered the appeal filed by the assessee on merits also. In our opinion, the same cannot be accepted. In view of the plethora of decisions of this Court, wherein this Court has, categorically, observed that if for any reason an appeal is dismissed on the ground of limitation and not on merits, that order would not merge with the orders passed by the first appellate authority. In that view of the matter, we are of the opinion, that the High Court was justified in rejecting the request made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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