Doctrine of merger applies only to issues actually decided; Revenue's separate challenge was held maintainable.

The doctrine of merger bars a later challenge only to the extent the same subject matter was already decided by the superior forum. Here, the earlier assessee appeal was confined to Modvat credit on lime stone crusher spares for a specific period, while the Revenue's appeal raised different items, alleged non-adjudication, contradictory findings, refractories, and penalty. On that basis, the earlier Tribunal order did not subsume the entire order-in-original. The doctrine of merger was treated as dependent on the scope of the prior jurisdiction and the issues actually in dispute, not as a rule of universal application. The Revenue's appeal was therefore held maintainable.

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Issues: Whether the Revenue's appeal was barred by the doctrine of merger because the assessee's earlier appeal against the same order had already been allowed by remand.

Analysis: The controversy turned on whether the subject matter of the Revenue's challenge was the same as the subject matter decided in the assessee's earlier appeal. The majority held that the assessee's appeal concerned a limited dispute regarding Modvat credit on lime stone crusher spares for a specific period, whereas the Revenue's appeal challenged different items, alleged non-adjudication, contradictory findings, refractories, and penalty. On that footing, the earlier Tribunal order did not exhaust or subsume the entire order-in-original for purposes of the later Revenue appeal. The majority further held that the doctrine of merger is not of universal application and depends on the nature and scope of the superior forum's jurisdiction and the subject matter actually in issue.

Conclusion: The Revenue's appeal was held to be maintainable and not barred by merger.

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