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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 ..... lhi in Central Excise Case No.41 of 2001, wherein the High Court has dismissed the reference application filed by the appellant. 2. The facts in nutshell are that the assessee is a manufacturer of dutiable excisable goods. For its manufacturing activity, it had purchased certain capital goods, namely Windsor Model Injection Moulding Machine and screw assembly along with tool kit falling under Chapter sub heading 8477.10. The assessee has availed a MODVAT Credit of Rs . 1,47,000/- by filing a declaration dated 30.6.1995 under Rule 57T (1), whereby it declared the receipt of the said goods from M/s D.G.P . Windsor India Ltd. vide invoice dated 18.6.1995, along with the application for condonation of delay, before the adjudicating authority/a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that it had also filed the application for condonation of delay in filing the declaration. 4. After receipt of the reply that was filed by the appellant, the adjudicating authority, after taking cognizance of the cash voucher of the assessee dated 30.6.1997, observed that the cash voucher which shows the payment made by the party is the evidence of delivery of the goods to the party. Therefore, the actual delivery of the goods to the assessee was made on 30.6.1997 instead of 30.6.1995. It also observed that the whole machinery was transported by one consignment, as evident from the invoice, which bear vehicle number used for transportation. In view of this, the adjudicating authority has confirmed the show cause notice a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see's appeal not only on the ground of limitation but also on merits of the case. The Tribunal vide its miscellaneous order dated 9.3.2001, in our opinion, has rightly rejected the application filed for rectification of the order passed. Being aggrieved by the order passed by the Tribunal, the assessee had approached the High Court by filing the reference application with a request to direct the Tribunal to state the case and the question of law for its consideration and decision. The High Court, after noticing the question of law that was framed by the assessee , has answered the same in negative and against the assessee and in favour of the revenue vide its judgment and order dated 21.12.2001. It is the correctness or otherwise of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andra, learned senior counsel appearing for the revenue has invited our attention to the decision of this Court in the case of Chandi Prasad & Ors ., Vs. Jagdish Prasad & Ors ., (2004) 8 SCC 724 wherein this Court, after consideration of the earlier decisions has come to the conclusion that the doctrine of merger would not apply to a case where an appeal is dismissed only on the ground of the limitation. In the said decision, this Court has observed as under: " ..... when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply." 9. The learned counsel has also invited our attention to the observations made by this Court in the case of State of Kerala & Anr . Vs. Kondottyp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree passed by the trial court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does." 11. The facts are not in dispute and cannot be disputed that there was a delay in filing the prescribed forms before the assessing authority. Therefore, the assessing authority had rejected the claim of the assessee and accordingly, had directed him for payment of the excise duty credit availed by the assessee . Aggrieved by that order, the assessee had belatedly filed an appeal before the proper appellate authority. Since there was delay in filing the appeal and since the same was not within the time that the appellate authority could have condoned the delay, accordingly had d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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