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TMI Blog2012 (10) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... anyal, Consultant for the Respondent (s) Per Shri S. K. Gaule : Heard both sides. The Revenue filed this application for staying the operation of Order-in-Appeal No. Kol/Cus/CKP/306/2010 dated 3.11.2010 Kol/Cus/CKP/270,271 272/2010 dated 28.09.2010, whereby the ld. Commissioner (Appeals) has rejected the review application filed by the Revenue. The contention of the Revenue is that when the review petition came before the ld. Commissioner (Appeals), the appeal filed by the respondent against the same impugned order-in-original was already decided by him. The contention is that the ld. Commissioner (Appeals) has rejected the review application filed by the Revenue on the ground that the original order against which the Review Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order-in-original against which the Review Application could be filed. When that is so, there cannot be any case for filing the Review Application against a non-existent order-in-original. It is clear from the above that the ld. Commissioner (Appeals) has not decided the issue on its merit. The Hon ble Supreme Court in the case of Pearl Drinks Ltd. (cited supra) held as under: 14. Applying the above test to the case at hand the doctrine would have no application for the plain and simple reason that the subject matter of the appeal filed by the assessee against the adjudicating authority s order in original was limited to disallowance of two out of eight deductions claimed by the assessee. The Tribunal was in that appeal concerned only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be partly in favour and partly against a party in which event the part that goes in favour of the party can be separately assailed by them in appeal filed before the appellate Court or authority but dismissal on merits or otherwise of any such appeal against a part only of the order will not foreclose the right of the party who is aggrieved of the other part of this order. If the doctrine of merger were to be applied in a pedantic or wooden manner it would lead to anomalous results inasmuch as a party who has lost in part can by getting his appeal dismissed claim that the opposite party who may be aggrieved of another part of the very same order cannot assail its correctness no matter the appeal earlier disposed of by the Court or authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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