Doctrine of merger – Appeal to Appellate Tribunal – Not applicable when appeal rejected on limitation.

The facts in nutshell are that the assessee is a manufacturer of dutiable excisable goods. The assessee availed a MODVAT Credit of Rs. 1,47,000/- by filing a declaration dated 30-06-1995 under Rule 57T(1), whereby it declared the receipt of the goods from M/s. DGP Windsor India Ltd. vide invoice dated 18- 06-1995, alongwith the application for condonation of delay, before the adjudicating authority/assessing authority. Accordingly, the adjudicating authority had issued a show cause notice.

As there was a delay in filing the prescribed forms before the assessing authority. Therefore, the assessing authority had rejected the claim of the assessee and accordingly, had directed him for payment of the Excise duty credit availed by the assessee. Aggrieved by that order, the assessee had belatedly filed an appeal before the proper appellate authority. Since there was delay in filing the appeal and since the same was not within the time that the appellate authority could have condoned the delay, accordingly had dismissed the same. It is that order which was questioned before the Tribunal. Before the Tribunal, as we have already noticed, the assessee had requested the Tribunal to first condone the delay and next to decide the appeal on merits, i.e. to decide whether the adjudicating authority was justified in disallowing the benefit of the Modvat credit that was availed by the assessee. The Tribunal had not conceded to the second request made by the assessee and only accepted the findings and conclusions reached by the Commissioner of Appeals, who had rejected the appeal. The assessee’s stand before the Tribunal and before this Court is that the orders passed by the adjudicating authority would merge with the orders passed by the first appellate authority and the Tribunal ought to have considered the appeal filed by the assessee on merits also. In our opinion, the same cannot be accepted. In view of the plethora of decisions of this court, wherein this court has, categorically, observed that if for any reason an appeal is dismissed on the ground of limitation and not on merits, that order would not merge with the orders passed by the first appellate authority.