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TMI Blog2022 (11) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner, respondents have suo-moto adjusted the said refunds against a demand confirmed against petitioner vide Order-in-Original dated 28th November 2014. WRIT PETITION NO.790 OF 2022 4. Via two refund applications dated 25th August 2021, petitioner had applied to respondents seeking refund of the following : Sr.No. Details of Bill of Entry Details of Challan discharging Customs Duty Customs Duty (in INR) 1 4681007 dated 14.07.2021 2035642398 dated 15.07.2021 54,79,692 2 4679815 dated 14.07.2021 2035642195 dated 15.07.2021 5,79,274 Total 60,58,966 5. Vide two impugned orders, both dated 31st December 2021, respondents have allowed the refunds of petitioner on merits. However, instead of disbursing the same to petitioner, respondents here again have suo-moto adjusted the said refunds against the demand confirmed against petitioner vide Order-in-Original dated 28th November 2014. 6. Vide the Order-in-Original dated 28th November 2014, respondents had confirmed a duty demand of Rs.5,23,16,494/- with interest, and imposed penalty of Rs.5,23,16,494/-. The Order-in-Original dated 28th November 2014 was passed confirming the demand proposed by a S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order) came to be 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 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 Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent no.2 before this Court against the final order dated 4th April 2017 in Fortune Marketing Pvt. Ltd. was dismissed on maintainability vide order dated 19th September 2018. Before seeking leave of the Apex Court to withdraw the appeal, petitioner had filed in the Apex Court an application to bring on record the order passed by CESTAT on the rectification application filed by Fortune Marketing Pvt. Ltd. and others allowing the same. This is evident from the Apex Court's office report dated 2nd March 2017 in respect of petitioner's case. 8. We have considered the order of the Apex Court whereofcourse there is no specific express leave being granted. Mr. Mishra submitted that there are plethora of judgments discussing the doctrine of merger because having filed the appeal under Section 130E of the Customs Act, 1962, the order allowing withdrawal of the appeal would mean that the said order has merged 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. 9. Per con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication of the remaining three appellantshas 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, GOI though produced before us escaped our attention while recording the order as also other materials like orders of first appellate authority on the same issue for for subsequent periods. The said clarification of the Department of Electronics and Information Technology, GOI and other materials may throw some light as to the classification of the products in question. We have also noticed that both sides have not argued on these points elaborately during the proceedings hence it may have escaped our attention. As to the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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