1997 (4) TMI 157 - AT - Central Excise

Case adjourned due to notice issues, Doctrine of Merger not applied, cross appeals filed. Further hearing scheduled.

The case was adjourned to 23rd July, 1997 due to issues with notice service. The Doctrine of Merger did not apply as cross appeals were filed by both ... Doctrine of Merger - service of notice through concerned Commissioner - effective service - cross appealsService of notice through concerned Commissioner - effective service - Proper mode and course of service of notice on the second respondent and consequential directions for service and listing. - HELD THAT: - The Bench recorded that the show-cause notice disclosed the second respondent's address at Madras and that, pursuant to earlier directions, service was required to be effected through the Commissioner of Central Excise, Madras. Service effected through the Mumbai Commissioner was therefore inappropriate. In view of the departmental contention about linked proceedings and the need for orderly hearing, the matter was adjourned. The Registry was directed to send intimation to the respondents at their Madras address and to supply two extra copies to the Departmental Representative's office for independent service through the Commissioners of Central Excise, Madras and Mumbai; where effective delivery cannot be made by either Commissioner the notice is to be displayed on their notice-boards. [Paras 1, 3]Service should have been effected through the Commissioner of Central Excise, Madras; registry to send intimation to Madras address and the Department to effect service through Commissioners of Central Excise, Madras and Mumbai, with display on notice-boards if delivery fails; matter adjourned for hearing on 23rd July, 1997.Doctrine of Merger - cross appeals - Whether the Doctrine of Merger prevents the Department from challenging the impugned order where the assessee's appeal has already been decided by the Tribunal. - HELD THAT: - The Tribunal examined the cited authorities relied upon by counsel for the respondents and considered the applicability of the Doctrine of Merger. It held that where cross appeals have been filed by both litigants against the same order, the Doctrine of Merger does not apply to bar the Department from challenging the order. The preliminary objection based on merger was therefore found to be without merit. [Paras 4, 5]Doctrine of Merger does not apply where cross appeals are filed by both parties to the same order; preliminary objection rejected.Final Conclusion: Hearing adjourned to 23rd July, 1997 with directions for effective service at the Madras address and alternative modes of service; preliminary objection based on the Doctrine of Merger dismissed. The case was adjourned to 23rd July, 1997 due to issues with notice service. The Doctrine of Merger did not apply as cross appeals were filed by both parties. The case was scheduled for further hearing.