Appeal — Merger of order — Once the Appellate Authority disposes a matter, the order passed by the subordinate authority gets merged in such order.

[Box and Carton India P.
Ltd. v. Commissioner of C. Ex. Delhi, 2010 (255) ELT 423 (Trib. Del.)]

The applicant had filed a
rectification application before CESTAT alleging various mistakes apparent on
the record in the order and pleaded that the order needs to be rectified.
Against the said order of the CESTAT the applicant had also approached the
Supreme Court and the appeal was dismissed by the Court. The applicant in the
rectification proceedings submitted that the issue raised in the rectification
application was not raised in the appeal before the Supreme Court and therefore
the principle of merger cannot be applied.

The CESTAT held that it was
a settled doctrine of merger that once the Appellate Authority is seized with
the matter, and particularly in relation to the merits of the case, whatever
order is passed in such proceedings by the Appellate Authority, becomes a final
order and becomes an executable order. In other words, once the proceedings in
appeal are disposed off by an order by the Appellate Authority, the order passed
by the subordinate authority, gets merged in such order.

Once the party takes the
step to take the matter at appellate stage on conclusion of the proceedings at
original stage and the Appellate Court, considering the matter on merits,
disposes the same either by way of reversal, modification or confirmation, the
operative order would be that of the Appellate Authority. It would all depend
upon exercise of powers by the Appellate Authority. Once the Appellate Authority
finds no case for interference in the order passed by the lower authority and
dismisses the appeal, the order of the original authority would get merged in
the order of the Appellate Authority and, therefore, the order which would be
executable will be that of the Appellate Authority.

The Tribunal considering the
law laid down by the three-Judge Bench of the Apex Court in Kunhayammed v.
State of Kerala, (2000) 6 SCC 359 held, that an order passed by the Apex
Court in its appellate jurisdiction either by reversing, modifying or confirming
the order of the lower court or lower authority would result in merger of order
of the lower Court or the lower authority in the order of the Apex Court,
irrespective of the fact as to whether such order of the Apex Court is a
speaking order or a non-speaking order.

It was further held that
once the applicant had approached the Supreme Court against such order and
having tried to get it set aside, it was not permissible for the applicant
thereafter to approach the Tribunal under the guise of rectification of the
order and to seek de novo hearing of the appeal. What in essence the
applicant was seeking in the matter was not the correction of the order, but
reassessment of the matter on the ground that the Tribunal failed to take note
of the fact that the documents which the Commissioner was expecting the parts to
produce were already in possession thereof. Undoubtedly, this could have been
the ground for the appellants before the Apex Court in the appeal field by the
appellants.

In any case, it is settled
law that the party is not entitled to raise the points in piecemeal by way of
different proceedings in that regard. If the party does not raise a point at an
appropriate stage and the matter stands concluded by final order, then the party
would be debarred from raising such point thereafter by reopening the matter.
That is principle embedded in Explanation 4 of S. 11 of the CPC. Considering the
same, it is not permissible to allow the applicant to raise issue under the
guise of filing rectification of application.