TaxTMI 
TaxTMI 
1991 (3) TMI 164
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....28 CE/MRT/84). So kindly file separate appeals against each order-in-appeal with fees of Rs. 200/- for each case." Since there are divergent views where a common order has been passed by the Collector (Appeals) disposing of a number of appeals, whether a single appeal should be filed or as many appeals as the number of appeals decided by the Collector (Appeals) by a common order. The Hon'ble President has constituted a Larger Bench for deciding the preliminary point. Accordingly, we proceed to decide the same. 2. Shri R.K. Jain, the learned consultant has appeared on behalf of the appellant. He has argued that there are 13 orders-in-original passed by the adjudicating authority and being aggrieved from those orders, 13 appeals were filed to the Collector (Appeals). Collector (Appeals) has disposed of the same by a common order, Shri R.K. Jain, the learned consultant had put emphasis on the word "a". He has referred to para No. 3 of the preamble of the order-in-appeal which reads as under :- "3. An appeal to the Appellate Tribunal should be made in form E.A. 3 in quadruplicate and be addressed to the Registrar of the said Appellate Tribunal." Shri Jain has referred to th....
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....645/1987-D dated 18th August, 1987 6 orders passed by the Asstt. Collector, Collector (Appeals) entertained a single appeal against all the 6 orders and passed a single order. Therefore, there was no occasion to ask the appellant to file supplementary appeals. Shri Jain, the learned consultant fairly stated that there are judgments against him also. He referred to the following judgments :- (i) 1983 (14) E.L.T. 1956 Indian Oil Corporation Ltd. (Haldia Refinery) v. Collector of Central Excise, Calcutta. "Although it is not correct to say that there was no legal bar to the filing of a single appeal against five assessment orders yet filing of one appeal against five assessment orders was not a nullity. Therefore, in such a situation, the appellants should be given an option to either file five separate appeals against the five assessment orders with requisite court fee stamps or restrict the scope of the single appeal filed before the Appellate Authority to one of the assessment orders." (ii) 1985 (21) E.L.T. 113 Indian Oil Corpn. Ltd., Haldia Refinery v. Collector of C. Ex.....
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.... the case of State of Tamil Nadu v. Arulmurugan and Company reported in 1982 (51) STC 381 where the Hon'ble Supreme Court had held as under at page 392 :- "An appeal is a continuation of the process of assessment and an assessment is but another name for adjustment of the tax liability to accord with the taxable event in the particular tax-payer's case. There can be no analogy or parallel between a tax appeal and an appeal, say, in civil cases. A civil appeal, like a law suit in the court of first instance out of which it arises, is really and truly an adversary proceeding, that is to say, a controversy or tussle over mutual rights and obligations between contesting litigants ranged against each other as opponents. A tax appeal is quite different." Shri Jain cited another decision of the Supreme Court in the case of Narhari and Others v. Shanker and Others reported in AIR 1953 SC 419 where the Hon'ble Supreme Court had held as under :- "From the decree of Trial Court in favour of the plaintiff two separate appeals were taken by two sets of the defendats. The appellate Court allowed both the appeals and dismissed the plaintiff's suit by one judgment and ordered a copy of th....
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....und that the findings had become final operating as res judicata between the parties." Shri Jain has argued that now there is a change in the trend. Filing of one appeal is more economical. He has also referred to the following judgments :- (i) AIR 1980 SC 2125 M/s. Central Coal Fields Ltd. and Another v. M/s. Jaiswal Coal Co. and Others "Supreme Court competent to adopt procedure to achieve quick justice -No vested right in procedure - Litigation involving payment of huge amount of court fees - Parties if directed to seek regular remedies possibility of inordinate lapse of time before litigation is finally decided - The Supreme Court directed the parties to arbitration thus ensuring quick justice." (ii) (1979) 118 ITR 412 Commissioner of Income-tax, West Bengal v. Rupa Traders appeal against best judgment assessment as well as refusal of registration of firm is justified." (iii) (1987) 167 ITR Ansari Jewellers v. CIT "One composite appeal against assessment and refusal of registration -Competent - Two separate appea....
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.... proceedings are enforcement of law. Shri Jain argued that in tax matters appeal proceedings are not continuation of the original proceedings. He has argued that doctrine of merger is applicable. He has argued that filing of an appeal is a matter of procedure. In support of his argument, he has referred to a judgment of the Bombay High Court in the case of D. Navinchandra & Co. v. Union of India reported in 1989 (43) E.L.T. 266 where the Bombay High Court had held that common order appealed to the Supreme Court by one party - common order set aside by Supreme Court - Supreme Court order would also govern the case of the other party. He has also cited a judgment of the Supreme Court in the case of East India Commercial Co. Ltd. v. Collector of Customs, Calcutta reported in AIR 1962 SC 1893. Lastly Shri Jain has again argued that there is a change in the trend. Litigation as far as possible should be reduced to the minimum and a single appeal should be entertainable where Collector (Appeals) has disposed of a number of appeals by a common order. 5. We have heard both the sides and have gone through the facts and circumstances of the case. We have looked into the provisions of law.....
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....reon and the reasons for the decision. (5) On the disposal of the appeal, the Collector (Appeals) shall communicate the order passed by him to the appellant, the adjudicating authority and the Collector of Central Excise." A simple perusal of sub-sections (4) and (5) of Section 35A shows that the order passed by the Collector (Appeals) will be communicated to the appellant, the adjudicating authority and the Collector of Central Excise. Shri R.K. Jain, the learned consultant has pleaded before us that where a common order has been passed a single appeal can be filed. He has cited various judgments of the Tribunal which are contradictory and lay down ratio that whether a single appeal against a common order disposing of multiple appeals is entertainable or multiple appeals have to be filed. He had argued that a proceeding for assessment cannot be equated with a civil dispute and there is difference in tax appeal and civil appeal. We have given due consideration to the arguments put forth by Shri R.K. Jain, the learned consultant. Shri Jain has laid heavy reliance on the judgment in the case of Narhari and Others v. Shankar and Others r....
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....d to be the decision in the former suit qua the other suit. Further, the provisions of Section 11, CPC without doubt show that it is a decision which creates the bar of res judicata and not a decree as the word used in the said section are "heard and finally decided"..........................................." "22. It is not possible to hold that in cases where the two suits or two appeals are consolidated and heard together, thus combining the controversy in the two suits or the two appeals into a single controversy and make the proceedings a single proceeding and dispose them of by a single judgment, that common judgment shall assume the role of judgment in the former suit in one of the suits so consolidated so as to make the other suit so far as the Trial Court was concerned, a subsequent suit in the proceedings. When two suits are decided by a single judgment the expressions "former suit" and "subsequent suit" as contemplated by Section 11, CPC have no significance. The principle of res judicata is based on the maxim that no one shall be vexed twice over the same matter. The question of res judicata so far as the Trial Court is concerned where two suits are consolidated and ....
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.... the appellate authority could not have passed an order sought to be made by the revising authority." In the case of P.K. Himatsingka & Co. v. Collector of Customs, Bombay reported in 1987 (29) E.L.T. 714 the Tribunal had the occasion to deal with the issue as to the filing of appeals against adjudication orders. Para No. 3 from the said judgment is reproduced below :- "3. It was in the backdrop of these controvertible facts that we allowed an opportunity to the Appellant to make good the deficiency in the number of Appeals that had, necessarily, to be filed before the Tribunal, if it were desired to contest all or a plurality of the Orders-in-Original, notwithstanding that we could have, if we so chose, required the Appellant to restrict the single Appeal filed to one only of the refund claims. For, it is axiomatic in law that there should be as many Appeals as there are original orders, sought to be contested. Even where two or more claims have been adjudicated together and a common order made, that order is to be read as an order separately in each one of the claims and as many Appeals filed as there are orders which are desired to be contested. In the Civil Procedure Code....
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....f the assessee was aggrieved by the order of refusal of registration it was incumbent on him to file a separate appeal in Form D. II and for the reasons discussed above it appears to me that a composite appeal in Form B, as in the instant case will not be justified by law." "17. To sum up my decision is that in view of the provisions contained in Section 23(4), Section 30 and the statutory forms prescribed, viz., Forms B, D. I and D. II, it appears that two appeals in a case like this are required to be filed." 6. Shri M.S. Arora, the learned JDR had cited a judgment in the case of Indian Cables Co. Ltd. v. Collector of Customs, Calcutta reported in 1983 (12) E.L.T. 558. Para Nos. 4 and 5 from the said judgment are reproduced below :- "4. At the very outset, the Appellant's counsel Shri A.K. Bhattacharjee was required to state how one single Revision application could maintain against dismissal of five different claims for refund and four appeals, albeit, by a common order. If one single Revision cannot maintain the counsel was required to identify any single appeal to the Appellate Collector or claim for refund which he would like to pursue in the instant proceedings. ....