S.B. SINHA, J.

(1) TRIBUNAL is correct in holding that two pleas mentioned in Ground 2 and Grounds 5 to 9 in the applicants appeal before it were not pressed by the applicant (Para 6 and 7 of the Tribunals order m/80/01/nb (SM).)

(2) APPEAL before the Commissioner (Appeals) should be treated to have been filed in time treating the date 16/12/97 as the date of filing the same as it was filed in the office of the Assistant Commissioner Central excise, Div -V: an officer sub-ordinate to commissioner (Appeals) in so far as appeals are concerned - on that date (Para 2 of Tribunals final order no. A/2180/00-NB (SM) dt. 17/10/2000).

(3) THE question on merits regarding correctness of availing the modvat credit on capital goods by the applicant was validly before the Tribunal, on the basis of the doctrine of merger, and the Tribunal was duty bound to deal with this question in the appeal before it, even if the appeal before Commissioner (Appeals) was treated to be barred by time as has been held by the authorities below. (Para 4 of tribunals order no. M/80/01 dt. 09/03/2001 and para 2 of Tribunals final order no. A/2180/00-NB (SM)dt. 17/10/2000).

(4) TRIBUNAL has the power to recall its final order no. A/2180/00-NB (SM) dt. 17/10/2000 and pass a fresh order, in exercise of its power under section 35c (2)to rectify the mistakes apparent from the record, since the mistakes are to go to the root of the case and the rectification of the mistake can not be made otherwise than by recalling its earlier order.

(5) IN other words, whether the law laid down by Larger bench of the Tribunal in 2000 (118) ELT 77-Para 9 is valid in all facts and circumstances including the facts and circumstances of this case (para 7 and 8 of tribunals order M/80/01 NB (SM) dt. 09/03/2001. Signature of Advocate (P. C. Jain)"

(6) THE fact of the matter, which is required to be noticed, is as follows: the applicants purchased one injection-moulding machine (Windsor model) with screw assembly and tool kits from M/s DGP Windsor India Ltd. , Bombay. The goods were cleared under cover of invoice no. 0189/95 dated 18 06. 95. The goods were consigned through M/s Chaudhary Roadlines Corporation vide their consignment note dated 18/06/95. Due to some trouble en route, the transporter delivered the goods in two parts. Main machine was delivered on 30/06/95 but the screw assembly was delivered a few days earlier. The Applicant submitted a declaration under rule 57 T to the Assistant Commissioner with intimation to the Superintendent Central Excise of the concerned range to this effect. Applicant also requested for condonation of delay in submission of the declaration as a part of the goods had been received earlier. Due to clerical mistake, the date of receipt of capital goods both in the declaration and intimation was indicated as 18/06/1995, which was in fact the date of invoice. The capital goods were duly accounted for in RG23c Part-1 and credit of duty was taken on 30/06/95 to the tune of Rs. 147000. 00 in RG23c Part- II. Range Superintendent issued a demand show-cause notice bearing C. No. CE/20/d/rmc/r-26/95/1397 dated 11/10/95 proposing to deny and recover the modvat credit of Rs. 147000. 00 alleging late submission of the prescribed declaration on 30/06/95 where in the capital goods had been declared to have been received on 18/06/1995. Applicants submitted a reply to the above demand show-cause notice on 16/11/1995 explaining that inadvertently the date of the invoice had been mentioned as the date of receipt of goods. Thus the applicants requested for dropping the show-cause notice. Applicants submission was not accepted by the Assistant commissioner of Central Excise who confirmed the demand of Rs. 1,47,000. 00 and directed recovery of the said amount. He also imposed a penalty of Rs. 20000. 00 vide his order-in-original no. 87/97-98 dated 17/10/1997. Aggrieved against the above order-in-original dated 17/10/1997, Applicant filed on 16/12/1997 an appeal, addressed to the commissioner (Appeals), New Delhi inadvertently in the office of the same Assistant commissioner Central Excise who had passed the order-in-original appealed against. Aforesaid mistake was committed by the Peon-cum-Record Keeper of the Applicants who submitted an affidavit dated 12/10/2000 to this effect. Although the Assistant commissioner Central Excise either ought to have returned the said appeal to the applicants or forwarded it to the office of the Commissioner (Appeals), New Delhi, yet he did not do anything and just slept over it. Applicants became aware of the said mistake around October 1998 when they intended to avail of the Kar Vivad Samadhan (KVS)Scheme. Hence the applicants sent a copy of the said appeal to the Commissioner (Appeals) office on 05/11/1998. Commissioner (Appeals) without going into merits of the appeal dismissed the same as time barred because it had been filed well beyond the period of delay of three months upto which the Commissioner (Appeals) had the power to condone the delay after the expiry of normal period of three months for filing the appeal. Aggrieved against the said order-in-appeal dated 01/03/2000 Applicants filed an appeal to the Tribunal, New Delhi. As would be observed from the grounds in the appeal before the Tribunal, Applicants made three basic pleadings, namely,

[i]. Appeal before Commissioner (Appeals) be deemed to have been filed on 16/12/1997 well within time of three months of the date of communication of Assistant Commissioners order-in-original dt. 17/10/1997, although this appeal was wrongly filed in the office of the same Assistant Commissioner on that date (Ground No. 2)

[ii]. If the date of filing appeal in Commissioner (Appeals) office is taken as 05/11/1998, delay in filing appeal in the said office be condoned by the Tribunal (Ground No. 3).

[iii]. On merits, A. C. s order is not sustainable (Ground No. 5 to 9).

(7) TRIBUNAL vide its final order no. A/2180/00-NB (SM) dated 17/10/2000 dismissed the appeal of the applicants upholding the finding of the Commissioner that this was barred by time. Commissioner (Appeals) could not condone the delay because the appeal was filed well beyond the power of condonation of delay of three months. It held that Tribunal had no powers to condone the delay. Tribunals said order dated 17/10/2000 was received by the Applicants on 19/12/2000. It is thus apparent that the tribunal did not deal with the pleadings stated at sub-paras (i) and (iii) in para 13 above. Not dealing with the pleas made in the appeal being a mistake apparent from the record in the Tribunals order. Applicants filed an application for Rectification of Mistakes (ROM)apparent from the record u/s 35c of the Central Excise Act, 1944 (1 of 1944) but without success. ROM application has been dismissed on the erroneous ground that the said two pleadings stated at (i) and (iii) in para 13 above were not pressed by the Consultant before the Tribunal during the course of personal hearing of the appeal on 17/10/2000. This finding of the Ld Member of the Tribunal is ex facie unsustainable because the tribunals final order No. A/2180/00-NB (SM) which records that only the plea of condonation of delay in filing the appeal before Commissioner (Appeals) was made and no other plea raised in the memo of Appeal before the Tribunal was pressed. A close reading of para 2 of Tribunals final order no. A/2180/00-NB (SM), as reproduced in para 6 of its Miscellaneous Order no. M/80/2001 -NB (SM), also reveals that the said two pleadings were also pressed as is apparent from a part of last sentence "we may be heard on merits considering the same as filed in time. " Nevertheless, an affidavit dated 14/04/2001 of the Consultant Shri C. S. Gupta, who argued the appeal of the applicants before the Tribunal clearly states that all the pleadings made in the memo of appeal before the Tribunal were pressed. Tribunal has found in para 7 of its Miscellaneous order No. M/80/01/nb (SM) dated 09/03/2001 that a final order in an appeal passed by a duly constituted Bench cannot recall an order passed or issued : "it further held:-

"under the cover of rectification of mistake, this Tribunal cannot exercise any power to recall an order validly passed". Quoting the above observation from a judgment of larger Bench (comprising three member) of the Tribunal in the case of S/shri Dinkar khindria and Dinesh Khindria reported in 2000 (38) RLT 442 (Cegat-L. B.) l=2000 (118) ELT 77], Tribunal New Delhi appears to hold that even if a plea going to the root of the case is made and admittedly not dealt with by the Tribunal, it can not recall its earlier order to rectify the mistake in the earlier order even if recall is the only method by which mistake apparent from the record can be rectified".

The learned counsel appearing on behalf of the petitioner, Mr. P. C. Jain would submit that although the Commissioner dismissed the appeal on the ground that the same was barred by limitation, having regard to the doctrine of merger, the Income-tax Appellate Tribunal ought to have considered the appeal on merit. It is not in dispute that in terms of provisions of the Central Excise Act, the appellate Commissioner had the jurisdiction to condone the delay for a period of three months only. The learned counsel would further contend that an appeal, although dismissed as being barred by limitation, would still be an appeal and as such, a further appeal before the Tribunal was maintainable which ought to have been decided on merits. The learned counsel would contend that an appeal filed before a wrong forum should be treated to have been filed on the day on which it was presented despite the fact that the same had been presented before the right forum on a latter occasion. Reliance in this connection has been placed on Mela Ram and Sons v. Commissioner of Income-tax. Punjab. (1956) 29 ITR 607 [LQ/SC/1956/20] , Mark Auto Industries v. CCE. New Delhi. 2000 (41) RLT 756 (CEGAT) and V. M. Salgaocar and Bros. P. Ltd. v. Commissioner of Income Tax etc. 2000 (38) RLT 619. In Kunhavammed and Ors. v. State of Kerala and Anr. (2000) 6 SCC 359 [LQ/SC/2000/1013] , it has been held that when a special leave is dismissed at the threshold without assigning any reason, neither the principles of res judicata nor the doctrine of merger shall apply. When a special leave petition is dismissed by a speaking or reasoned order, still then, the doctrine of merger shall not apply but rule of discipline and Article 141 would be attracted or where the leave is granted and appeal is dismissed without reasons, merger results. In Kunhavammed and Ors. (Supra), it has been held in relation to the doctrine of merger, as under:"7. The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognized. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times. "

(8) FURTHER in para 32, it was held:

"32. It may be that in spite of having granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of this Court would result in superseding the decision under appeal attracting doctrine of merger. But if the same reasons had prevailed with this Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal. "

(9) HAVING heard the learned counsel for the parties, we are of the opinion that the case of this nature, doctrine of merger, as such, has no application. An appeal can be treated to be a regular appeal only when the delay in filing the appeal is condoned. In the instant case, the limitation in preferring the appeal had not and could not be condoned. It is not a case where the appellant herein could take recourse to the provisions of Section 14 of the Limitation Act, 1963, provisions of which have no application to the present case. The appeals were filed before the Central Excise and Salt commissioner, and the CEGAT, which are not courts.

(10) HAD the Limitation Act, 1963 been applicable, the appellant could have taken recourse to Section 14 thereof. It is now well settled that where Section 14 of the act cannot be taken recourse to, such a plea can be raised in an application for condonation of delay as provided for in the statute, which may be akin to the provisions contained in section 5 of Limitation Act. In the instant case, the jurisdiction of the commissioner, to condone the delay in filing the appeal was restricted to three months only. Thus, as the appellant had withdrawn the memo of appeal from the Assistant commissioner, CEGAT, he could not have exercised his jurisdiction to condone the delay in filing the appeal beyond a period of three months.

(11) THE decisions relied upon by the learned counsel for the applicant have no application in the facts and circumstances of this case. In Mela Ram and Sons v. Commissioner of Income-tax. Punjab (supra), the question which arose for consideration was as follows:

"whether in the circumstances of the case appeals lay to the Tribunal against order of the Appellate Assistant commissioner dismissing the appeals against the assessments for the years 1945-1946 and 1946-1947 in limine. "

(12) IT was with a view to answering the said question that it was held that an appeal presented out of time is also an appeal and the order dismissing it as time barred is one passed in appeal. The provision for preferring an appeal in terms of Section 33 (1) of thewas:

"any assessee objecting to an order passed by an appellate Assistant Commissioner under section 28 or section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him. "

(13) THUS, any order passed by the Assistant Commissioner, CEGAT could be appealed against to the Appellate Tribunal. Having regard to the afore-mentioned provisions, the apex court held that:

". . . There is thus abundant authority for the position that section 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues, such as limitation and the like. "

(14) IN Collector of C. Ex. , Bhubaneswar v. Jayshree Chemicals Ltd. , 1997 (96)ELT 625, the CEGAT as regards the claim of refund, held that when application had been filed before a wrong officer, it was his duty to return the same immediately so that it could be presented before the competent authority without delay. No exception to the afore-mentioned proposition can be taken. But in the instant case, by reason of inaction on the part of the appropriate authority. Commissioner of Appeals could not have condoned the delay beyond the period of three months, in relation whereto he had no jurisdiction.

(15) THE decision in Mark Auto Industries v. CCE. New Delhi (supra) was counter to the contention of the learned counsel for the appellant. In para 8, it was held: 8. Statement of law made by the Madras High court that only when the appellate authority entertains the appeal and deals with it on merits; the order original authority should be taken to have merged in the order cannot be stated as good law in view of the decision of the Supreme court in V. M. Salgacar and P. Ltd. etc. Vs Commissioner or income Tax, 2000 (38) RLT 619. According to their lordships, even when an appeal to the Supreme Court is dismissed by non-speaking order, the doctrine or merger applies This must apply to the non-speaking orders passed by all appellate authorities as well however, as noted hereinbefore three Judges Bench of the Supreme Court in Kunhavammed and Ors. (supra) has taken a different view when an appeal can be taken up for consideration on merit, the delay in filing the same must be condoned. If the application for condonation of delay is dismissed, an appeal may lie there-against but the only question, which can be raised in the appeal, would be as to whether the Commissioner of Appeals was justified in refusing to condone the delay No other question, far less, any question on merit of the matter could be gone into by the Appellate Tribunal

(16) IN view of this matter, we are of the opinion that as the Commissioner of appeal could not have condoned the delay beyond a period of three months, the appellate Tribunal cannot be said to have committed any error of law in upholding the order of the Commissioner of Appeal There is no merit in this appeal. It is dismissed accordingly.