TaxTMI 
TaxTMI 
2009 (12) TMI 479
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....ld be eligible to get the Cenvat credit of the duty) paid by M/s. Super Fine Packaging on various inputs that were used by them for manufacturing the goods. The applicants had enclosed invoices wise details of credit available to them on inputs as Annexure-60 to the Memorandum of Appeal in support of their submission. It was also mentioned in para G.2 that if the Commissioner intended to get the invoices verified it was open and therefore, the finding of the Commissioner that the applicants had not substantiated their claim was not sustainable. (ii) That the applicants had further submitted that M/s. Super Fine Packaging had exported goods valued at Rs. 36,29,012 - involving excise duty amounting to Rs. 5,80,642/- during the relevant period. The demand of the duty is, therefore, to be reduced by the amount of duty involved in the export goods. The applicants had enclosed copies of relevant documents evidencing export of finished goods collectively as Annexure-61. (iii) That the Tribunal rejected the said submissions without referring to the evidence and material brought on record as Annexure-60 and Annexure-61 to the Memorandum of Appeal. Therefore, a mistake has crept into the....
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....the Tribunal the same were not considered and it was wrongly observed that the applicants had not produced the documents for verification. It being the error apparent on the face of the record according to the applicants, the order needs to be rectified. 5. Learned Advocate for the applicants fairly conceded that the applicants had approached the Apex Court against the order dated 24-4-2008 by way of appeal and that the same was dismissed by the Apex Court; however, submitted that it was dismissal simpliciter and, therefore, principle of merger would not apply. She further submitted that the issue which is sought to be canvassed in the application for rectification was not raised in the appeal before the Apex Court and, therefore, neither the principle of merger can apply nor filing of appeal and dismissal thereof by the Apex Court would come in the way of the applicant in pursuing the application for rectification of the said order. Attention was drawn to para 10 of the decision of the Apex Court in the matter of Kunhayammed and Others v. State of Kerala and Another reported in (2000) 6 S.C.C. 359. She further submitted that in any case the order of the Apex Court in the appeal w....
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....s an executable order. In other words, once the proceedings in appeal are disposed of by an order by the appellate authority, the order passed by the subordinate authority, gets merged in such order. The Apex Court in Chandi Prasad and Others v. Jagdish Prasad and Others reported in (2004) 8 SCC 724 while dealing with the principle of merger held thus :- "The doctrine of merger is based on the principles of propriety in the hierarchy of the justice-delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time. It is trite that when an appellate court passes a decree, the decree of the trial court merges with the decree of the appellate court and even if and subject to any modification that may be made in the appellate decree, the decree of the appellate court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the appellate court affirms, modifies or reverse....
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....moosa, the Apex Court held that the revision petition was disposed of on the ground of laches and not in relation to the merits of the case. Similar the decision in the case of Kunhayammed is that of a three-Judge Bench in comparison to two-Judge Bench decision in Kondottyaparambanmoosa. In Kunhayammed's case, the Apex Court had taken note of the decision in the matter of Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat and reference thereto finds in para 28 of the said decision and while arriving at the conclusion in the said decision, it was ruled thus :- "Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it. the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law". 12. It was concluded that :- "Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order pass in appeal would attract the doctrine of merger; the order may be of r....
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....s observed that the act of the learned single-Judge of the High Court was "subversive of judicial discipline". It is to be noted that it was a case where the review petition was filed after rejection of the SLP and not after the dismissal of the appeal. In the matter in hand, the applicants have approached for rectification of the order after the dismissal of the appeal by the Apex Court. 16. The present application is slated to have been filed under Section 35C(2) of the Central Excise Act, 1944. The said provision of law reads thus :- "The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal. The proviso states that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a re....