2002 (7) TMI 123

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....Central Excise Act, 1944." 2.Heard both sides. 3.The contention of the learned Counsel appearing on behalf of the appellant is that the Tribunal in the case of Mark Auto Industries v. C.C.E., New Delhi, reported in 2001 (138) E.L.T. 399 (T) = 2000 (41) RLT 756 (CEGAT) held that it is well settled position that the order in original merges with the order in appeal passed by the first Appellate authority and the appeal against such an order is maintainable before the second Appellate authority and when the adjudicating authority order got merged in order passed by the Appellate authority whether on merit or on limitation, the said order is open to challenge before the Tribunal. 4.The contention of the Revenue is that after considerin....

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.... Act, 1944. The Tribunal in the case of Mark Auto Industries v. C.C.E., New Delhi (Supra) taken a view that the Tribunal can hear the appeal on merit even in the case where the appeal was dismissed by the Commissioner (Appeals) by holding that appeal was filed beyond the period of limitation prescribed under Section 35 of the Central Excise Act, 1944 and the Tribunal held that as order passed by the adjudicating authority is merged in order passed by the Commissioner (Appeals), therefore, the Tribunal is competent to hear the appeal on merit. The issue of merger, when an appeal has been dismissed as time-bar, came before Hon'ble Supreme Court in the case of Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, reported in (1982) 2 Supreme Court C....

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....ge : (i) the application of the doctrine of merger cannot be rendered in-applicable by drawing a distinction between an application for revision and an appeal; (ii) the application of the doctrine of merger depends on the nature of the appellate or revisional order in each case and on the scope of the statutory provisions conferring the appellate or revisional jurisdiction. The doctrine of merger is not a doctrine of rigid and universal application. Whether there is fusion or merger of the order of the inferior tribunal into an order by a superior tribunal shall have to be determined by finding out the subject-matter of appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute; (ii....

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....thority not to reject the refund application on the ground that it is time-bar. Hon'ble Supreme Court after considering the earlier decision in the case of Collector of Central Excise v. Doaba Cooperative Sugar Mills reported in 1988 (37) E.L.T. 478 (S.C.) and in the case of Miles India Ltd. v. Asstt. Collector of Customs reported in 1987 (30) E.L.T. 641 (S.C.) held that such direction is un-sustainble in law. The power conferred under Article 226/227 of Constitution is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who ar....