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TMI Blog2018 (9) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... he jurisdiction to review on the High Court as to such appellate orders also against which though an appeal was carried to the Supreme Court, the same was not admitted by it. An appeal would be said to have been admitted by the Supreme Court if leave to appeal was granted - Admittedly, in the case in hand, the Hon'ble High Court as well as the Hon'ble Apex Court has not passed any speaking order, in that circumstances, doctrine merging is not applicable to the facts of the case. As the appellant has filed an application for Review of the order of this Tribunal, although the appellant has filed an application under order 47 Rule 1 of C.P.C. 1908, but, the said application is in nature of application for rectification of mistake and the same can be filed under Section 35C (2) of the Central Excise Act, 1944. The purchase order which was sought by this Tribunal were not in the possession of the appellant, therefore, the observation of this Tribunal "that as the documents were in the possession of the appellant, there is abuse in process of law on behalf of the appellant" is mistake apparent on record - the matter is remanded in limited purpose for verification of purchase orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Order 47 Rule 1 of C.P.C. it would be better to extract the provisions of Order 47 Rule 1 of C.P.C. which are extracted hereinunder:- I. Application for review of judgment. -(1) Any person considering himself aggrieved - (1) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court or Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order. 6. On going through the above said provision, we find that the said provision can be attracted in case the appellant was not able to produce the documents which were beyond their control before this Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Apex Court or not? 10. The said issue came up before the Hon'ble Apex Court in the case of Kunhayammed Vs. State of Kerala reported in 2001 (129) ELT 11 (SC). Wherein the Hon'ble Apex Court has examined the issue when the order of this Tribunal merged with the order of the Superior Court and the Hon'ble Apex Court has observed as under:- 44. To sum up our conclusion are: (i) Where an appeal or revision is provided against an order passed by a court, Tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of univers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C. A similar issue came up before this Tribunal also in the case of Haryana Acrylic Mfg Co. Pvt. Ltd. vs. CCE, Ltu Delhi in Application No. E/ROM/60057/2017 in Appeal No. E/2648/1999 vide Final Order No. 60057/2018 dated 29.01.2018. This Tribunal has observed as under:- 13. On going through the said guidelines, we find that in this case Tribunal order was challenged by the applicant before the Hon'ble High Court and the Hon'ble High Court has dismissed their appeal but with the liberty to take appropriate remedy in accordance with law and the said order has been challenged before the Hon'ble Apex Court which has dismissed their petition in limine. As per guide lines by the Hon'ble Apex Court in the case of Kunhayammed Vs. State of Kerala (Supra), the order of this Tribunal does not merge with the order of the Hon'ble Apex Court or the Hon'ble High Court. Moreover, the Hon'ble High Court itself has given liberty to the applicant to take appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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