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TMI Blog2022 (11) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, has allowed those appeals in favour of other three parties. CESTAT took up the appeal filed by Fortune Marketing Pvt. Ltd. for final hearing (post the recall of the order dated 4th October 2016) and passed final order dated 4th April 2017 allowing the appeals and deciding the issue in favour of Fortune Marketing Pvt. Ltd. - the reason for allowing the rectification application to those appellants is because CESTAT accepted that it had not considered the clarification issued by the Department of Electronics and Information Technology, Government of India though it was produced before CESTAT. The doctrine of merger would not apply in this case. This is because the Apex Court while permitting leave to withdraw the appeal has not passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner had preferred an appeal under Section 130E of the Customs Act, 1962 before the Apex Court. After the appeal was filed in the Apex Court, the other three parties whose appeals were listed alongwith petitioner s appeal, viz., M/s. Fortune Marketing Private Limited and other appellants filed a rectification of mistake application before CESTAT for rectifying the common order dated 4th October 2016. The rectification application was filed on the ground that CESTAT had not considered in the said order dated 4th October 2016, clarification that was issued by the Department of Electronics and Information Technology, Government of India though produced before CESTAT as also other materials like orders of first Appellate Authority on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible and, therefore, the application came to be dismissed. 6. Heard the counsels. The order dated 4th October 2016 is a common order and if the application of three other applicants/appellants is allowed on the ground that certain documents placed on record have not been considered and those are not party specific documents, certainly that benefit, in our view, should also be extended to petitioner in this case. 7. Another point is CESTAT, after hearing those appeals and considering the Government of India notification, has allowed those appeals in favour of other three parties. CESTAT took up the appeal filed by Fortune Marketing Pvt. Ltd. for final hearing (post the recall of the order dated 4th October 2016) and passed fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... octrine of merger was applicable and he bought to the attention of the Court paragraph 73 and 74 of the said judgment. In our view, this judgment is not applicable in as much as in Omprakash Verma (supra), the Apex Court has observed that once the appeal of the State has been allowed, the net result would be that the High Court s judgment which held that the proceedings under the ULC Act were vitiated, stood merged in the decision of the Apex Court in State of A.P. V/s. N. Audikesava Reddy (2002) 1 SCC 227. In the case at hand (a) it is a statutory appeal and (b) no leave was granted or any order of admission was passed. 10. Mr. Mishra also relied upon judgment of the Apex Court in Pernod Ricard India Pvt. Ltd. V/s. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch four appellants were heard including petitioner; (b) rectification application of the remaining three appellants has been allowed; (c) the reason for allowing the rectification application to those appellants is because CESTAT accepted that it had not considered the clarification issued by the Department of Electronics and Information Technology, Government of India though it was produced before CESTAT. Paragraph 3.1 of the said order dated 13th December 2016 allowing rectification application reads as under : 3.1. On careful consideration of the submissions made by both sides and perusal of our final order dated 04.10.2016, it is noticed that the clarification issued by Department of Electronics and Information Technology ..... X X X X Extracts X X X X X X X X Extracts X X X X
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