{"id":154020,"date":"2001-12-21T00:00:00","date_gmt":"2001-12-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raja-mechanical-company-pvt-ltd-vs-commissioner-of-central-excise-on-21-december-2001"},"modified":"2015-06-04T04:42:31","modified_gmt":"2015-06-03T23:12:31","slug":"raja-mechanical-company-pvt-ltd-vs-commissioner-of-central-excise-on-21-december-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raja-mechanical-company-pvt-ltd-vs-commissioner-of-central-excise-on-21-december-2001","title":{"rendered":"Raja Mechanical Company Pvt. Ltd. vs Commissioner Of Central Excise on 21 December, 2001"},"content":{"rendered":"
Delhi High Court<\/div>\n
Raja Mechanical Company Pvt. Ltd. vs Commissioner Of Central Excise on 21 December, 2001<\/div>\n
Equivalent citations: 2002 IVAD Delhi 621, 2002 (82) ECC 607, 2002 (144) ELT 36 Del<\/div>\n
Author: S Sinha<\/div>\n
Bench: S Sinha, A Sikri<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 S.B. Sinha, C.J.  <\/p>\n
 1. This appeal under Section 268-A of the Income-tax Act has been filed,
\nraising the following questions of law:\n<\/p>\n
Whether in the facts and circumstances of the case:-\n<\/p>\n
1. Tribunal is correct in holding that two pleas
\nmentioned in Ground 2 and Grounds 5 to 9 in the
\nApplicants appeal before it were not pressed by the
\nApplicant (Para 6 & 7 of the Tribunal’s order
\nM\/80\/01\/NB(SM).) <\/p>\n
2. Appeal before the Commissioner (Appeals) should
\nbe treated to have been filed in time treating the date
\n16\/12\/97 as the date of filing the same as it was filed
\nin the office of the Assistant Commissioner Central
\nExcise, Div-V: an officer sub-ordinate to
\nCommissioner (Appeals) in so far as appeals are
\nconcerned – on that date. (Para 2 of Tribunals final
\norder No. A\/2180\/00-NB(SM) dt. 17\/10\/2000).\n<\/p>\n
 3. The question on merits regarding correctness of
\navailing the modvat credit on capital goods by the
\napplicant was validly before the Tribunal, on the
\nbasis of the doctrine of merger, and the Tribunal was
\nduty bound to deal with this question in the appeal
\nbefore it, even if the appeal before Commissioner
\n(Appeals) was treated to be barred by time as has
\nbeen held by the authorities below. (Para 4 of
\nTribunal’s order No. M\/80\/01 dt. 09\/03\/2001 and
\npara 2 of Tribunal’s final order No. A\/2180\/00-NB
\n(SM) dt. 17\/10\/2000).\n<\/p>\n
 4. Tribunal has the power to recall its final order no.
\nA\/2180\/00-NB (SM) dt. 17\/10\/2000 and pass a fresh
\norder, in exercise of its power under Section 35c(2)
\nto rectify the mistakes apparent from the record,
\nsince the mistakes are to go to the root of the case
\nand the rectification of the mistake can not be made
\notherwise than by recalling its earlier order.\n<\/p>\n
 5. In other words, whether the law laid down by Larger
\nBench of the Tribunal in 2000 (118) ELT 77-Para 9
\nis valid in all facts and circumstances including the
\nfacts and circumstances of this case (para 7 and 8 of
\nTribunal’s Order M\/80\/01 NB (SM) dt. 09\/03\/2001.\n<\/p>\n
Signature of Advocate <\/p>\n
(P.C. Jain)”\u00a0\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0\n<\/p>\n
 The fact of the matter, which is required to be noticed, is as follows:\n<\/p>\n
 2. The applicants purchased one injection-moulding machine (Windsor
\nModel) with screw assembly and tool kits from M\/s DGP Windsor India Ltd., Bombay.
\nThe goods were cleared under cover of invoice No. 0189\/95 dated 18.06.95. The goods
\nwere consigned through M\/s Chaudhary Roadlines Corporation vide their consignment
\nnote dated 18\/06\/95. Due to some trouble en route, the transporter delivered the goods in
\ntwo parts. Main machine was delivered on 30\/06\/95 but the screw assembly was
\ndelivered a few days earlier. The Applicant submitted a declaration under Rule 57 T to
\nthe Assistant Commissioner with intimation to the Superintendent Central Excise of the
\nconcerned range of this effect. Applicant also requested for condensation of delay in
\nsubmission of the declaration as a part of the goods had been received earlier. Due to
\nclerical mistake, the date of receipt of capital goods bathed in the declaration and intimation
\nwas indicated as 18\/06\/1995, which was in fact the date of invoice. The capital goods
\nwere duly accounted for in RG23C Part-I and credit of duty was taken on 30\/06\/95 to the
\ntune of Rs. 147000\/- in RG23C Part-II. Range Superintendent issued a demand show-cause
\nnotice bearing C. No. CE\/20\/D\/RMC\/R-26\/95\/1397 dated 11\/10\/95 proposing to
\ndeny and recover the modvat credit of Rs. 147000\/- alleging late submission of the
\nprescribed declaration on 30\/06\/95 where in the capital goods had been declared to have
\nbeen received on 18\/06\/1995. Applicants submitted a reply to the above demand show-cause
\nnotice on 16\/11\/1995 explaining that inadvertently the date of the invoice had been
\nmentioned as the date of receipt of goods. Thus the applicants requested for dropping the
\nshow-cause notice. Applicant’s submission was not accepted by the Assistant
\nCommissioner Central Excise who confirmed the demand of Rs. 1,47,000\/- and
\ndirected recovery of the said amount. He also imposed a penalty of Rs. 20000\/- vide his
\norder-in-original No. 87\/97-98 dated 17\/10\/1997. Aggrieved against the above order-in-original
\ndated 17\/10\/1997, Applicant filed on 16\/12\/1997 an appel, addressed to the
\nCommissioner (Appeals), New Delhi inadvertently in the office of the same Assistant
\nCommissioner Central Excise who had passed the order-in-original appealed against.
\nAforesaid mistake was committed by the Peon-cum-Record Keeper of the Applicants
\nwho submitted an affidavit dated 12\/10\/2000 to this effect. Although the Assistant
\nCommissioner Central Excise either ought to have returned the said appeal to the
\napplicants or forwarded it to the office of the Commissioner (Appeals), New Delhi, yet he
\ndid not do anything and just slept over it. Applicants became aware of the said mistake
\naround October 1998 when they intended to avail of the Kar Vivad Samadhan (KVS)
\nScheme. Hence the applicants sent a copy of the said appeal to the Commissioner
\n(Appeals) office on 05\/11\/1998. Commissioner (Appeals) without going into merits of
\nthe appeal dismissed the same as time barred because it had been filed well beyond the
\nperiod of delay of three months up to which the Commissioner (Appeals) had the power to
\ncondone the delay after the expiry of normal period of three months for filing the appeal.
\nAggrieved against the said order-in-appeal dated 01\/03\/2000 Applicants filed an appeal
\nto the Tribunal, New Delhi. As would be observed from the grounds in the appeal before
\nthe Tribunal, Applicants mae three basic pleadings, namely,<\/p>\n
 [i]. Appeal before Commissioner (Appeals) be deemed to have
\nbeen filed on 16\/12\/1997 well within time of three months of
\nof date of communication of Assistant Commissioner order-in-original
\ndt. 17\/10\/1997, although this appeal was wrongly
\nfiled in the office of the same Assistant Commissioner on that
\ndate (Ground No. 2) <\/p>\n
 [ii]. If the date of filing appeal in Commissioner (Appeals) office
\nis taken as 05\/11\/1998, delay in filing appeal in the said office
\nbe condoned by the Tribunal (Ground No. 3).\n<\/p>\n
 [iii]. On merits, A.C.’s order is not sustainable (Ground No. 5 to 9).\n<\/p>\n
 3. Tribunal vide its final order No. A\/2180\/00-NB(SM) dated 17\/10\/2000
\ndismissed the appeal of the applicant upholding the finding of the Commissioner that
\nthis was barred by time. Commissioner (Appeals) could not condone the delay because
\nthe appeal was filed well beyond the power of condensation of delay of three months. It
\nheld that Tribunal had no powers to condone the delay. Tribunal’s said order dated
\n17\/10\/2000 was received by the Applicants on 19\/12\/2000. It is thus apparent that the
\nTribunal did not deal with the pleadings stated at sub-paras (i) and (iii) in para 13 above.
\nNot dealing with the pleas made in the appeal being a mistake apparent from the record in
\nthe Tribunal’s order, Applicants filed an application for Rectification of Mistakes (ROM)
\napparent from the record under Section 35C of the Central Excise Act, 1944 (1 of 1944) but without
\nsuccess. ROM application has been dismissed on the erroneous ground that the said two
\npleadings -stated at (i) and (iii) in para 13 above were not pressed by the Consultant
\nbefore the Tribunal during the course of personal hearing of the appeal on 17\/10\/2000.
\nThis finding of the Ld Member of the Tribunal is ex facie unsustainable because the
\nTribunal’s final order No. A\/2180\/00-NB(SM) which records that only the plea of
\ncondensation of delay in filing the appeal before Commissioner (Appeals) was made and
\nno other plea raised in the memo of Appeal before the Tribunal was pressed. A close
\nreading of para 2 of Tribunal’s final order No. A\/2180\/00-NB(SM), as reproduced in para
\n6 of its Miscellaneous Order No. M\/80\/2001-NB (SM), also reveals that the said two
\npleading were also pressed as is apparent from a part of last sentence “We may be heard
\non merits considering the same as filed in time.”  Nevertheless, an affidavit dated
\n14\/04\/2001 of the Consultant Shri C.S. Gupta, who argued the appeal of the applicants
\nbefore the Tribunal clearly states that all the pleadings mae in the memo of appeal
\nbefore the Tribunal were pressed. Tribunal has found in para 7 of its Miscellaneous
\nOrder No. M\/80\/01\/NB (SM) dated 09\/03\/2001 that a final order in an appeal passed by a
\nduly constituted Bench cannot recall an order passed or issued :-  “It is further held:-
\n“Under the cover of rectification of mistake, this Tribunal cannot exercise any power to
\nrecall an order validly passed”. Quoting the above observation from a judgment of
\nLarger Bench (comprising three member) of the Tribunal in the case of  S\/Shri Dinkar
\nKhindria and Dinesh Khindria reported in   2000 (38) RLT 442 (Cegat-L.B.) [=2000
\n(118) ELT 77],    Tribunal, New Delhi appears to hold that even if a plea going to the root
\nof the case is made and admittedly not dealt with by the Tribunal, it can not recall its
\nearlier order to rectify the mistake in the earlier order even if recall is the only method by
\nwhich mistake apparent from the record can be rectified.\n<\/p>\n
 4. The learned counsel appearing on behalf of the petitioner, Mr. P.C. Jain
\nwould submit that although the Commissioner dismissed the appeal on the ground that
\nthe same was barred by limitation, having regard to the doctrine of merger, the Income-
\ntax Appellate Tribunal ought to have considered the appeal on merit.\n<\/p>\n
 5. It is not in dispute that in terms of provisions of the Central Excise Act,
\nthe appellate Commissioner had the jurisdiction to condone the delay for a period of three
\nmonths only.\n<\/p>\n
 6. The learned counsel would further contend that an appeal, although
\ndismissed as being barred by limitation, would still be an appeal as such, a further
\nappeal before the Tribunal was maintainable which ought to have been decided on merits.
\nThe learned counsel would contend that an appeal filed before a wrong forum should be
\ntreated to have been filed on the day on which it was presented despite the fact that the
\nsame had been presented before the right forum on a latter occasion. Reliance in this
\nconnection has been placed on  Mela Ram and Sons v. Commissioner of Income-tax,
\nPunjab,<\/a> (1956) 29 ITR 607,  Mark Auto Industries v. CCE, New Delhi, 2000(41) RLT
\n756 (CEGAT) and  V.M. Salgaocar & Bros. P. Ltd. v. Commissioner of Income Tax etc.,
\n2000(38) RLT 619.\n<\/p>\n
 7. In  Kunhayammed and Ors. State of Kerala and Anr.  , it
\nhas been held that when a special leave is dismissed at the threshold without assigning
\nany reason, neither the principles of res judicata nor the doctrine of merger shall apply.
\nWhen a special leave petition is dismissed by a speaking or reasoned order, still then, the
\ndoctrine of merger shall not apply but rule of discipline and Article 141 would be
\nattracted or where the leave is granted and appeal is dismissed without reasons, merger
\nresults. In  Kunhayammed & Ors. (Supra), it has been held in relation to the doctrine of
\nmerger, as under:\n<\/p>\n
 “7. The doctrine of merger is neither a doctrine of
\nconstitutional law nor a doctrine statutorily recognized. It is
\na common law doctrine founded on principles of propriety
\nin the hierarchy of justice delivery system. On more
\noccasions than one this Court had an opportunity of dealing
\nwith the doctrine of merger. It would be advisable to trace
\nand set out the judicial opinion of this Court as it has
\nprogressed through the times.”\n<\/p>\n
 Further in para 32, it was held:\n<\/p>\n
“32. It may be that in spite of having grated leave to
\nappeal, the Court may dismiss the appeal on such grounds as
\nmay have provided foundation for refusing the grant at the
\nearlier state. But that will be a dismissal of appel. The
\ndecision of this Court would result in superseding the
\ndecision under appeal attracting doctrine of merger. But if
\nthe same reasons had prevailed with this Court for refusing
\nleave to appeal, the order would not have been an appellate
\norder but only an order refusing to grant leave to appeal.”\n<\/p>\n
 8. Having heard the learned counsel for the parties, we are of the opinion that
\nthe case of this nature, doctrine of merger, as such, has no application.\n<\/p>\n
 9. An appeal can be treated to be a regular appeal only when the delay in
\nfiling the appeal is condoned. In the instant case, the limitation in preferring the appeal
\nhad not and could not be condoned.\n<\/p>\n
 10. It is not a case where the appellant herein could take recourse to the
\nprovisions of Section 14 of the Limitation Act, 1963, provisions of which have no
\napplication to the present case. The appeal were filed before the Central Excise and Salt
\nCommissioner, and the CEGAT, which are not courts.\n<\/p>\n
 11. Had the Limitation Act, 1963 been applicable, the appellant could have
\ntaken recourse to Section 14 thereof. It is now well settled that where Section 14 of the
\nAct cannot be taken recourse to, such a plea can be raised in an application for
\ncondensation of delay as provided for in the statute, which may be akin to the provisions
\ncontained in Section 5 of Limitation Act. In the instant case, the jurisdiction of the
\nCommissioner, to condone the delay in filing the appeal was restricted to three months
\nonly. Thus, as the appellant had withdrawn the memo of appeal from the Assistant
\nCommissioner, CEGAT, he could not have exercised his jurisdiction to condone the
\ndelay in filing the appeal beyond a period of three months.\n<\/p>\n
 12. The decisions relied upon by the learned counsel for the applicant have no
\napplication in the facts and circumstances of this case. In  Mela Ram and Sons v.
\nCommissioner of Income-tax, Punjab<\/a> (supra), the question which arose for consideration
\nwas as follows:\n<\/p>\n
  “Whether in the circumstances of the case appeals
\nlay to the Tribunal against order of the Appellate Assistant
\nCommissioner dismissing the appeal against the
\nassessments for the years 1945-1946 and 1946-1947 in
\nliming.”\n<\/p>\n
 13. It was with a view to answering the said question that it was held that an
\nappeal presented out of time is also an appeal and the order dismissing it as time barred is
\none passed in appeal.\n<\/p>\n
 14. The provision for preferring an appeal in terms of Section 33(1) of the Act
\nwas:\n<\/p>\n
“any assessed objecting to an order passed by an
\nAppellate Assistant Commissioner under Section 28 or
\nSection 31 may appeal to the Appellate Tribunal within sixty
\ndays of the date on which such order is communicated to
\nhim.”\n<\/p>\n
 15. Thus, any order passed by the Assistant Commissioner, CEGAT could be
\nappealed against to the Appellate Tribunal. Having regard to the afore-mentioned
\nprovisions, the apex court held that:\n<\/p>\n
“…There is thus abundant authority for the position
\nthat Section 31 should be liberally construed so as to include
\nnot only orders passed on a consideration of the merits of
\nthe assessment but also orders which dispose of the appeal
\non preliminary issues, such as limitation and the like.”\n<\/p>\n
 16. In Collector of  C.Ex., Bhubaneswar v. Jayshree Chemicals Ltd.,<\/a>  1997(96)
\nELT 625, the CEGAT as regards the claim of refund, held that when application had been
\nfiled before a wrong officer, it was his duty to return the same immediately so that it
\ncould be presented before the competent authority without delay. No exception to the
\nafore-mentioned proposition can be taken. but in the instant case, by reason of inaction
\non the part of the appropriate authority, Commissioner of Appeals could not have
\ncondoned the delay beyond the period of three months, in relation whereto he had no
\njurisdiction.\n<\/p>\n
 17. The decision in  Mark Auto Industries v. CCE, New Delhi (supra) was
\ncounter to the contention of the learned counsel for the appellant. In para 8, it was held:\n<\/p>\n
8. Statement of law made by the Madras High
\nCourt that only when the appellate authority entertains the
\nappeal and deals with it on merits; the order original
\nauthority should be taken to have merged in the order cannot
\nbe stated as good law in view of the decision of the Supreme
\nCourt in  V.M. Salgaocar & P. Ltd. etc. v. Commissioner of
\nIncome Tax,   2000 (38) RLT 619.  According to their
\nLordships, even when an appeal to the Supreme Court is
\ndismissed by non-speaking order, the doctrine of merger
\napplies. This must apply to the non-speaking orders passed
\nby all appellate authorities as well.\n<\/p>\n
18. However, as noted hereinbefore three judges Bench of the Supreme Court
\nin  Kunhayammed & Ors. (supra) has taken a different view.\n<\/p>\n
 19. When an appeal can be taken up for consideration on merit, the delay in
\nfiling the same must be condoned. If the application for condensation of delay is
\ndismissed, an appeal may lie there-against but the only question, which can be raised in
\nthe appeal, would be as to whether the Commissioner of Appeals was justified refusing
\nto condone the delay. No other question, far less, any question on merit of the matter
\ncould be gone into by the Appellate Tribunal.\n<\/p>\n
 20. In view of this matter, we are of the opinion that as the Commissioner of
\nAppeal could not have condoned the delay beyond a period of three months, the
\nAppellate Tribunal cannot be said to have committed any error of law in upholding the
\norder of the Commissioner of Appeal. There is no merit in this appeal. It is missed
\naccordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Raja Mechanical Company Pvt. Ltd. vs Commissioner Of Central Excise on 21 December, 2001 Equivalent citations: 2002 IVAD Delhi 621, 2002 (82) ECC 607, 2002 (144) ELT 36 Del Author: S Sinha Bench: S Sinha, A Sikri JUDGMENT S.B. Sinha, C.J. 1. This appeal under Section 268-A of the Income-tax Act has […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-154020","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nRaja Mechanical Company Pvt. 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