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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 ..... e passed in Appeal No.C/85678 of 2015 filed by petitioner against an order dated 28th November 2014 passed by Commissioner of Customs (Import), ACC Mumbai. This order dated 4th October 2016 of CESTAT was a common order passed in appeals filed by four parties including petitioner herein. The challenge in the appeal was to the classification and consequent rate of duty adopted by the Assessing Officer. 3. Against the said order dated 4th October 2016, petitioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for rectification of mistake. The said application came to be dismissed by an order dated 26th August 2019 which is impugned in this petition. According to CESTAT, by filing the appeal before the Apex Court petitioner has exhausted its remedy and withdrawal of the appeal subsequent to invoking the jurisdiction of the Apex Court to avail of a provision in law encoded for rectification of a mistake without express leave of the Court to do so was not 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the order passed by CESTAT. Therefore, CESTAT was correct in rejecting the application. Mr. Sridharan submitted otherwise and relied upon various judgments including a judgment of the Apex Court in State of Kerala and Anr. V/s. Kondottyparambanmoosa and Ors (2008) 8 SCC 65. 9. Per contra, Mr. Mishra relied upon a judgment of the Apex Court in Omprakash Verma and Ors. V/s. State of Andhra Pradesh and Ors.2 to submit that doctrine 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icata would affect petitioner's remedy under Article 226 of the Constitution of India and may not bar other remedies. 12. Having heard the counsels, in the interest of justice, we are inclined to allow the petition and direct CESTAT to consider petitioner's rectification application. Reasons for us to arrive at this conclusion are as under : (a) the order dated 4th October 2016 has been a common order in which 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 Info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erger, in our opinion, would not apply in this case. This is because the Apex Court while permitting leave to withdraw the appeal has not passed any order on merits. The appeal had not even been admitted. The order of the Apex Court is also not an order rejecting the appeal and, therefore, the said order cannot be said to be an order of affirmance of the order of CESTAT. That being the position, in our view, the doctrine of merger cannot be applied to the facts and circumstances of this case. (g) gross injustice would be caused to petitioner if this petition is not allowed. 13. In the circumstances, we set aside the impugned order dated 26th August 2019 and direct CESTAT to consider petitioner's appeal on merits once again. The Appeal No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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