Customs, Excise and Gold Tribunal - Delhi
Ekantika Copiers (P) Ltd. vs Collector Of Central Excise on 22 March, 1991
Equivalent citations: 1991(56)ELT350(TRI-DEL)
ORDER
Harish Chander, Vice President
1. Ekantika Copiers Private Ltd., 40/1, Industrial Area No. 4, Sahibabad (U.P.) has filed an appeal being aggrieved from a common order-in-appeal No. 416 to 428 CE/Meerut/84 dated 13th July, 1984 passed by the Collector of Central Excise (Appeals), New Delhi. In column No. 3 of the appeal memo, the date of communication has been mentioned as 16th August, 1984. The said appeal was presented in the Registry on 15th November, 1984. The Registry had intimated the appellant vide letter F.No. ED(SB)A.No. 2454/84-B dated 30th November, 1984 issued on 1st December, 1984 as under :-
"However, it is mentioned here that this is a case of multiple appeal involving 13 order-in-appeal (416 to 428 CE/MRT/84). So kindly file separate appeals against each order-in-appeal with fees of Rs. 200/- for each case."
Since there are divergent views where a common order has been passed by the Collector (Appeals) disposing of a number of appeals, whether a single appeal should be filed or as many appeals as the number of appeals decided by the Collector (Appeals) by a common order. The Hon'ble President has constituted a Larger Bench for deciding the preliminary point. Accordingly, we proceed to decide the same.
2. Shri R.K. Jain, the learned consultant has appeared on behalf of the appellant. He has argued that there are 13 orders-in-original passed by the adjudicating authority and being aggrieved from those orders, 13 appeals were filed to the Collector (Appeals). Collector (Appeals) has disposed of the same by a common order. Shri R.K. Jain, the learned consultant had put emphasis on the word "a". He has referred to para No. 3 of the preamble of the order-in-appeal which reads as under :-
"3. An appeal to the Appellate Tribunal should be made in form E.A. 3 in quadruplicate and be addressed to the Registrar of the said Appellate Tribunal."
Shri Jain has referred to the provisions of Section 35B of the Central Excises and Salt Act, 1944 and Sub-section (1) provides that "Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order :-
(a) a decision or order passed by the Collector of Central Excise as an adjudicating authority;
(b) an order passed by the Collector (Appeals) under Section 35A.
(c) ...
(d) ... "
Shri Jain argued that in the present matter, Collector (Appeals) has passed a common order disposing of 13 appeals. Shri Jain argued that there can be a situation where 4 show cause notices were issued, but still the adjudicating authority can pass one adjudication order. In support of his argument he has referred to the following judgments :-
(i) 1983 (12) ELT 628 Unique Pharmaceutical Labs., Bombay v.
Collector of Central Excise, Bombay "If the Collector of Customs (Appeal) has disposed of four appeals by a common order, it is against this order that the appellants have the grievance. Therefore a single revision appeal was in order."
(ii) 1988 (33) ELT 563 Bharat Petroleum Corporation Ltd.
v.
Collector of Customs, Bombay "Single order of the Collector disposing of six orders require only one appeal to the Tribunal without payment of extra fees."
(iii) Order No. 449 and 450/1987-D Ceat Tyres of India Ltd. v. Collector of Customs, Bombay in appeal No. C/1682 of 1983(D) with Supplementary Appeal Nos. 459 & 460/87(D) The Assistant Collector had disposed of three refund claims by three separate orders. One appeal against the three orders of the Assistant Collector filed before Collector (Appeals) and the Collector entertained a single appeal. The Tribunal held that the Registry ought not have asked for filing two supplementary appeals - Original appeal already disposed of vide order No. 227/87-D dated 20-3-1987. The Tribunal had dismissed the supplementary appeals as redundant vide Order No. 449 and 450/1987-D dated 1st June, 1987.
(iv) Appeal No. CD/SB/1136/86-D -1989 (43) ELT 485 (Tri.) M.A. Kachwalia & Sons v. Collector of Customs, Bombay Order No. 645/1987-D dated 18th August, 1987 6 orders passed by the Asstt. Collector, Collector (Appeals) entertained a single appeal against all the 6 orders and passed a single order. Therefore, there was no occasion to ask the appellant to file supplementary appeals.
Shri Jain, the learned consultant fairly stated that there are judgments against him also. He referred to the following judgments :-
(i) 1983 (14) ELT 1956 Indian Oil Corporation Ltd. (Haldia Refinery) v. Collector of Central Excise, Calcutta.
"Although it is not correct to say that there was no legal bar to the filing of a single appeal against five assessment orders yet filing of one appeal against five assessment orders was not a nullity. Therefore, in such a situation, the appellants should be given an option to either file five separate appeals against the five assessment orders with requisite court fee stamps or restrict the scope of the single appeal filed before the Appellate Authority to one of the assessment orders."
(ii) 1985 (21) ELT 113 Indian Oil Corpn. Ltd., Haldia Refinery v. Collector of C. Ex., Calcutta.
"Single appeal filed against several orders on a common issue not sustainable but dismissal of such an appeal as nullity is wrong, the appellate authority should give time for filing separate appeal for each assessment."
(iii) 1987 (29) ELT 714 P.K. Himatsingka & Co.
v.
Collector of Customs, Bombay "Five claims disposed of by an order numbered separately textually identical - Filing of as many appeals as there were adjudication orders necessary."
Shri Jain referred to Section 96 of the Civil Procedure Code. Sub-section (1) of Section 96 CPC provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. He further argued that Section 2(2) defines a decree. The same is reproduced below :-
"2(2). "Decree" means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144 but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
Shri Jain argued that an order passed by a Central Excise Officer as an adjudicating authority cannot be equated with decree. Shri Jain further argued that Section 100 of CPC further provides for the filing of a second appeal. Shri Jain referred to (1964) 53 ITR 231 S.S. Gadgil v. Lal & Co. where the Supreme Court had held that: "A proceeding for assessment is not a suit for adjudication of a civil dispute. That an Income-tax proceeding is in the nature of a judicial proceeding between contesting parties, is a matter which is not capable of even a plausible argument." Shri Jain also referred to Full Bench decision of the Madras High Court in the case of State of Tamil Nadu v. Anilmurugan and Company reported in 1982 (51) STC 381 where the Hon'ble Supreme Court had held as under at page 392 :-
"An appeal is a continuation of the process of assessment and an assessment is but another name for adjustment of the tax liability to accord with the taxable event in the particular tax-payer's case. There can be no analogy or parallel between a tax appeal and an appeal, say, in civil cases. A civil appeal, like a law suit in the court of first instance out of which it arises, is really and truly an adversary proceeding, that is to say, a controversy or tussle over mutual rights and obligations between contesting litigants ranged against each other as opponents. A tax appeal is quite different."
Shri Jain cited another decision of the Supreme Court in the case of Narhari and Ors. v. Shanker and Ors. reported in AIR 1953 SC 419 where the Hon'ble Supreme Court had held as under :-
"From the decree of Trial Court in favour of the plaintiff two separate appeals were taken by two sets of the defendats. The appellate Court allowed both the appeals and dismissed the plaintiffs suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal. Two decrees were prepared. The plaintiffs preferred two appeals. One of the appeals was time-barred and on the principle of res judicata the High Court dismissed both the appeals.
Held that it was not necessary to file two separate appeals in this case. The question of res judicata arose only when there were two suits. As there was one suit and both the decrees were in the same case and based on the same judgment and the matter decided concerned the entire suit the principle of res judicata did not apply. Further, the High Court ought to have given the appellant benefit of S. 5 Limitation Act, as there was conflict of decisions regarding this question."
Shri Jain argued that in the case of Shenoy & Company v. Commercial Tax Officer, Bangalore and Ors. reported in 1985 (21) ELT 14 (SC) where the Supreme Court had held that: "Appeal filed against one petitioner only and not against all - Declaration made by the Supreme Court in one case binding on all courts, authorities and persons notwithstanding the fact that the State had filed only one appeal and had not filed appeals against other petitioners in the common order." Shri Jain has referred to another decision in the case of Commissioner of Income-tax, Delhi (Central) and Anr. v. Income-tax Appellate Tribunal, Delhi Bench where it was held by the Delhi High Court that: "Several appeals by family and separated members on identical point in assessment of family for the same year - Appellate Tribunal consolidating appeals and passing one order - One application for reference filed within time whether competent - other applications filed after expiry of period of limitation." The Delhi High Court had further held as under :-
"It is well-settled that in cases where two or more appeals are consolidated and heard together, combining the controversy in the appeals into a single controversy and making the proceedings a single proceeding disposing of them by a single judgment, there is no warrant for holding that an appeal filed against the common judgment in one of the appeals is barred merely because no appeals were filed in the connected cases, because in such a case there is in substance as well as in form but one verdict and that there would be no justification to stifle the hearing of the appeal against such a judgment on the ground that the findings had become final operating as res judicata beween the parties."
Shri Jain has argued that now there is a change in the trend. Filing of one appeal is more economical. He has also referred to the following judgments :-
(i) AIR 1980 SC 2125 Central Coal Fields Ltd. and Anr.
v.
Jaiswal Coal Co. and Ors.
"Supreme Court competent to adopt procedure to achieve quick justice -No vested right in procedure - Litigation involving payment of huge amount of court fees - Parties if directed to seek regular remedies possibility of inordinate lapse of time before litigation is finally decided - The Supreme Court directed the parties to arbitration thus ensuring quick justice."
(ii) (1979) 118 ITR 412 Commissioner of Income-tax, West Bengal v.
Rupa Traders "Single appeal against best judgment assessment as well as refusal of registration of firm is justified."
(iii) (1987) 167 ITR Ansari Jewellers v. CIT "One composite appeal against assessment and refusal of registration -Competent - Two separate appeals not necessary."
(iv) (1985) 20 Taxman 47 (AP) "Whether where ITO passes a common order purportedly under Section 143 in respect of assessment of income as well as refusal of registration to assessee - firm, assessee can file a common appeal against such assessment and refusal of' registration - Held, yes."
(v) Nirali Enterprises v.
Union of India and Ors.
Writ Petition No. 2037 of 1990 1990 (50) ELT 497 (Bom.) Shri R.K. Jain, the learned consultant argued that in view of the legal position explained by him, where the Collector (Appeals) had disposed of a number of appeals by a common order, single appeal is entertainable.
3. Shri M.S. Arora, the learned JDR who has appeared on behalf of the respondent, stated that Shri R.K. Jain has already cited judgments which are in his favour. He has pleaded that there have to be as many appeals as number of orders-in-original and the mere fact that a common order has been passed by the appellate court cannot be a ground for filing a single appeal. In support of his argument he has referred to a judgment in the case of Indian Cables Co. Ltd. v. Collector of Customs, Calcutta reported in 1983 (12) ELT 558 and argued that where the Tribunal had held that if four appeals have been disposed of by the Appellate Collector by a common order, one appeal to the Tribunal was not maintainable against such common order. Shri Arora has referred to the provisions of Section 35B of the Central Excises and Salt Act, 1944. He has argued that it is the bounden duty of the Collector (Appeals) to dispose of as many appeals as filed before him. He has also reffered to the provisions of Sub-section (3) of Section 35B of the Central Excises and Salt Act, 1944 which lays down the procedure to be followed by the Collector (Appeals). Shri Arora argued that though there is one order and there can be cross-appeals against that order all the provisions have to be read harmoniously. Shri Arora has argued that there can be as many appeals as there are orders-in-original, though there may be a common order-in-appeal.
4. Shri R.K. Jain, the learned consultant in reply referred to the provisions of Section 35A of the Central Excises and Salt Act, 1944. He has argued that an appeal is continuation of the original proceedings, but tax proceedings are enforcemnt of law. Shri Jain argued that in tax matters appeal proceedings are not continuation of the original proceedings. He has argued that doctrine of merger is applicable. He has argued that filing of an appeal is a matter of procedure. In support of his argument, he has referred to a judgment of the Bombay High Court in the case of D. Navinchandra & Co. v. Union of India reported in 1989 (43) ELT 266 where the Bombay High Court had held that common order appealed to the Supreme Court by one party - common order set aside by Supreme Court - Supreme Court order would also govern the case of the other party. He has also cited a judgment of the Supreme Court in the case of East India Commercial Co. Ltd. v. Collector of Customs, Calcutta reported in AIR 1962 SC 1893. Lastly Shri Jain has again argued that there is a change in the trend. Litigation as far as possible should be reduced to the minimum and a single appeal should be entertainable where Collector (Appeals) has disposed of a number of appeals by a common order.
5. We have heard both the sides and have gone through the facts and circumstances of the case. We have looked into the provisions of law. Section 35B of the Central Excises and Salt Act, 1944 provides for the filing of the appeal before the Tribunal. Sub-sections (1) and (3) of Section 35B are reproduced below :-
(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order -
(a) a decision or order passed by the Collector of Central Excise as an adjudicating authority;
(b) an order passed by the Collector (Appeals) under Section 35A;
(c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereinafter in this Chapter referred to as the Board) or the Appellate Collector of Central Excise under Section 35, as it stood immediately before the appointed day;
(d) an order passed by the Board or the Collector of Central Excise, either before or after the appointed day, under Section 35A, as it stood immediately before that day;
(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Central Excise, or as the case may be, the other party preferring the appeal."
A simple perusal of Clause (a) of Sub-section (1) of Section 35B shows that where a decision or order has been passed by the Collector of Central Excise as an adjudicating authority the aggrieved person may appeal to the Appellate Tribunal against such order and a perusal of Clause (b) of Sub-section (1) shows that where an order has been passed by Collector (Appeals) under Section 35A, the aggrieved person may file an appeal to the Appellate Tribunal. A perusal of Sub-section (3) of Section 35B shows that every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Central Excise, or as the case may be, the other party preferring the appeal. Sub-sections (4) and (5) of Section 35A relates to the procedure to be followed by the Collector (Appeals). Subsections (4) and (5) of Section 35A are reproduced below :-
(4) The order of the Collector (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision.
(5) On the disposal of the appeal, the Collector (Appeals) shall communicate the order passed by him to the appellant, the adjudicating authority and the Collector of Central Excise."
A simple perusal of sub-sections (4) and (5) of Section 35A shows that the order passed by the Collector (Appeals) will be communicated to the appellant, the adjudicating authority and the Collector of Central Excise. Shri R.K. Jain, the learned consultant has pleaded before us that where a common order has been passed a single appeal can be filed. He has cited various judgments of the Tribunal which are contradictory and lay down ratio that whether a single appeal against a common order disposing of multiple appeals is entertainable or multiple appeals have to be filed. He had argued that a proceeding for assessment cannot be equated with a civil dispute and there is difference in tax appeal and civil appeal. We have given due consideration to the arguments put forth by Shri R.K. Jain, the learned consultant. Shri Jain has laid heavy reliance on the judgment in the case of Narhari and Ors. v. Shankar and Ors. reported in AIR 1953 SC 419 where the Hon'ble Supreme Court had held as under :-
"From the decree of Trial Court in favour of the plaintiff two separate appeals were taken by two sets of the defendants. The appellate Court allowed both the appeals and dismissed the plaintiffs' suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal. Two decrees were prepared. The plaintiffs preferred two appeals. One of the appeals was time-barred and on the principle of 'res judicata' the High Court dismissed both the appeals.
Held that it was not necesary to file two separate appeals in this case. The question of 'res judicata' arose only when there were two suits. As there was one suit and both the decrees were in the same case and based on the same judgment and the matter decided concerned the entire suit the principle of 'res judicata' did not apply. Further, the High Court ought to have given the appellant benefit of S. 5, Limitation Act, as there was conflict of decisions regarding this question."
In the matter before us, the Collector (Appeals) had passed a common order disposing of 13 appeals and the order was passed on 13th July, 1984. Hon'ble Delhi High Court in the case of Tulison Traders, Delhi and Anr. v. Gurdit Singh and Ors. reported in AIR 1974 Delhi 190 had the occasion to deal with the situation where two suits were decided by a single judgment where the Delhi High Court had held that "When two suits are decided by a single judgment the expression "former suit" and "subsequent suit" as contemplated by Section 11, CPC have no significance. Relevant extracts from paras 20 and 22 of the said judgment are reproduced below :-
"20. A perusal of the aforesaid section would show that bar to the trial of a suit or issue contemplated by the said section arises only in a suit in which matter directly and substantially in issue had been directly and substantially in issue in a former suit between the same parties and that matter had been heard and finally decided in a former suit. The expression "former suit" denotes the suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. That being so, the question of res judicata would not arise in the case of two suits decided simultaneously by a common judgment as decision given simultaneously cannot be said to be the decision in the former suit qua the other suit. Further, the provisions of Section 11, CPC without doubt show that it is a decision which creates the bar of res judicata and not a decree as the word used in the said section are "heard and finally decided" .... "
"22. It is not possible to hold that in cases where the two suits or two appeals are consolidated and heard together, thus combining the controversy in the two suits or the two appeals into a single controversy and make the proceedings a single proceeding and dispose them of by a single judgment, that common judgment shall assume the role of judgment in the former suit in one of the suits so consolidated so as to make the other suit so far as the Trial Court was concerned, a subsequent suit in the proceedings. When two suits are decided by a single judgment the expressions "former suit" and "subsequent suit" as contemplated by Section 11, CPC have no significance. The principle of res judicata is based on the maxim that no one shall be vexed twice over the same matter. The question of res judicata so far as the Trial Court is concerned where two suits are consolidated and tried simultaneously as a single controversy and as a single proceeding cannot arise. I am supported in this view by a judgment of the Full Bench of the Allahabad High Court in Jai Narain Har Narain v. L. Bulaqi Das - AIR 1969 All. 504. Ahmed Ali Khan 's case, AIR 1947 Oudh 74 (supra) is distinguishable on facts. That was not a case of common judgment in the consolidated cases."
It is a settled law that when the appellate court decides an appeal, decree of the Trial Court merges in the decree of the appellate court and the appellate court passes a fresh decree. These were the observations of Andhra Pradesh High Court in the case of Kerala Transport Co., Hyderabad and etc. v. Atul Kumar Agarwal and etc. reported in AIR 1986 Andhra Pradesh 306. Para No. 21 from the said judgment is reproduced below :-
"21. When an appellate Court decides an appeal either affirming, reversing or modifying the decree of the Trial Court, the decree of the Trial Court merges in the decree of the appellate Court but whether the decree of the appellate Court is one of affirmance, reversal or modification, the appellate Court, in the eye of the law, always passes a fresh decree. It cannot be argued that in cases of reversal of decrees of Trial Court, vide Gojer Brothers v. Ratan Lal - AIR 1974 SC 1380 and Collector of Customs, Calcutta v. East India Commercial Co, Ltd. - AIR 1963 SC 1124. Viewed in that light, the Court passing the decree either at the trial stage or at the appellate stage has to take note of subsequent events, such as the change in the law and mould the decree accordingly vide Bai Dosabail v. Mathurdas -AIR 1980 SC 1334 at P. 1339. In our view, the court has also to take into account any subsequent change in the legal relationship occurring between the parties by virtue of the subsequent operation of a previous law, such as the notification issued by the Government on 29-12-1983."
Madras High Court in the case of State of Madras v. V. Guruviah Naidu and Anr. reported in AIR 1968 Madras 137 had made the following observations :-
"The general principle that the order appealed against merges in the appellate order and the appellate order is the only effective and enforceable order is not unqualified in its application. It can have no application in a case where the question could not form part of the proceedings before the appellate authority and in which the appellate authority could not have passed an order sought to be made by the revising authority."
In the case of P.K. Himatsingka & Co. v. Collector of Customs, Bombay reported in 1987 (29) ELT 714 the Tribunal had the occasion to deal with the issue as to the filing of appeals against adjudication orders. Para No. 3 from the said judgment is reproduced below :-
"3. It was in the backdrop of these controvertible facts that we allowed an opportunity to the Appellant to make good the deficiency in the number of Appeals that had, necessarily, to be filed before the Tribunal, if it were desired to contest all or a plurality of the Orders-in-Original, notwithstanding that we could have, if we so chose, required the Appellant to restrict the single Appeal filed to one only of the refund claims. For, it is axiomatic in law that there should be as many Appeals as there are original orders, sought to be contested. Even where two or more claims have been adjudicated together and a common order made, that order is to be read as an order separately in each one of the claims and as many Appeals filed as there are orders which are desired to be contested. In the Civil Procedure Code, for example, it is provided in Section 96 that an Appeal shall be from every decree passed. A "decree" is the formal expression of an adjudication which so far as the Court expressing it, conclusively, determines the right of the parties with regard to all or any of the matters in controversy in the suit [S. 2(2) of the CPC]. Where a plurality of suits are disposed of by a common judgment, there are as many separate decrees drawn as there are suits disposed of and, necessarily, Appeals have to be filed against each decree separately, failing which such of the decrees not appealed against become final. An Order-in-Original i.e., in adjudication, is something like a decree. If not appealed against, it becomes final. Likewise, if a plurality of Appeals are disposed of by a common order, that single order is relatable to each one of them and becomes final unless second Appeals are filed."
Hon'ble Calcutta High Court in the case of Fuel Supply Co., Calcutta v. Commisioner of Income-tax, Calcutta reported in AIR 1965 Calcutta 28 in paras 8 and 17 had held as under :-
"8. It will appear from R.21 that a separate form has been prescribed in respect of appeals preferred against an order under Section 26A. I am in agreement with Mr. Balai Pal when he says that the order of refusal to register under Section 26A and under Section 23(4) stand entirely on a different footing. The procedure in registration of Firms has been provided for in Section 26A and such procedure is controlled by the Rules framed under the Act. This section contemplates that a firm's registration might have been renewed from year to year, in the past, yet the Income-tax Officer may refuse to renew the registration in a particular year, if the application for renewal is not in order or if the Income-tax Officer is not satisfied that the Firm is genuine and actually existed in terms specified in the instrument of Partnership. Furthermore, cancellation of registration may be effected under R. 6B. The provisions in this section are substantially different from those in Section 23(4) as registration of a firm under this section may either be refused or be cancelled in any of those contingencies which warrant a best judgment assessment. This being the position, two separate forms of appeal, viz., D. I. and D. II have been provided for by the Rule Making Authority and, as such, I am of opinion that if the assessee was aggrieved by the order of refusal of registration it was incumbent on him to file a separate appeal in Form D. II and for the reasons discussed above it appears to me that a composite appeal in Form B, as in the instant case will not be justified by law."
"17. To sum up my decision is that in view of the provisions contained in Section 23(4), Section 30 and the statutory forms prescribed, viz., Forms B, D. I and D. II, it appears that two appeals in a case like this are required to be filed."
6. Shri M.S. Arora, the learned JDR had cited a judgment in the case of Indian Cables Co. Ltd. v. Collector of Customs, Calcutta reported in 1983 (12) ELT 558. Para Nos. 4 and 5 from the said judgment are reproduced below :-
"4. At the very outset, the Appellant's counsel Shri A.K. Bhattacharjee was required to state how one single Revision application could maintain against dismissal of five different claims for refund and four appeals, albeit, by a common order. If one single Revision cannot maintain the counsel was required to identify any single appeal to the Appellale Collector or claim for refund which he would like to pursue in the instant proceedings.
5. The learned counsel sought to justify a single Revision of the orders in four separate appeals in respect of five claims for refund concerning five different consignments imported on diverse dates on the ground that it was, after all, one single order in appeal of the Appellate Collector which was required to be revised, and that it was a common order relating to five separate claims for refund is not of any consequence. His contention was obviously untenable. He, however, offered to pay the fees in respect of the other remaining three appeals and prayed for treating the Single Appeal No. 489/81-C as four different appeals and for condonation of delay. The request was acceded to in view of the prevailing practice with the Revisional Authority of entertaining a Single Revisional Authority of entertaining a single Revision against a common order in a plurality of appeals involving identical questions of facts and law and the resulting hardship if we are now to confine the hearing of appeal in one claim for refund instead of five different claims. Accordingly, the appellant was permitted to file identical copies of Grounds of Appeal in respect of the other four claims for refund as well on payment of separate set of fees in regard to them condoning the delay and they arc numbered as Appeal Nos. 1225 to 1227/81-C."
7. Shri R.K. Jain, the learned consultant referred to many judgments where it was held that a single appeal can be filed against an appellate order disposing of a number of appeals. We would like to refer to the ease of CIT v. Income-tax Appellate Tribunal, Delhi Bench B reported in (1975) 99 ITR 552 where a consolidated order was passed and only one reference application was filed. The facts and circumstances of the case do not help the appellant. There can be a situation where different appellants are there. The issue involved is common and the lower appellate authority disposed of the appeals by a common order. If the argument of the learned consultant is to be accepted, then in all the cases one single appeal will be sufficient. In our view that is not the correct position of the law. The ratio laid down by the Tribunal in the case of P.K. Himatsingka & Co. v. Collector of Customs, Bombay reported in 1987 (29) ELT 714 is the correct law. Accordingly, we hold that where Collector (Appeals) disposes of a number of appeals by a common order, the appellant should file as many appeals as numbers of orders-in-original and the mere fact that a common order has been passed by the Collector (Appeals) cannot be a ground for filing a single appeal.
8. [Contra per: D.C. Mandal, Member (T)]. - Following the ratio of the undermentioned judgments I am of the view that one single appeal before this Tribunal will suffice in a situation where the lower appellate authority has passed a common order disposing of more than one appeal filed before him :
(i) AIR 1953 SC 419 Narhari and Ors. v. Shanker and Ors.
(ii) 1983 (12) ELT 628 (Tribunal) Unique Pharmaceutical Labs., Bombay v.
Collector of Central Excise, Bombay
(iii) 1988 (33) ELT 563 (Tribunal) Bharat Petroleum Corporation Ltd.
v.
Collector of Customs, Bombay
(iv) Tribunal's Orders No. 449 and 450/1987-D in Appeals No. C/1682/1983(D) and C/459 & 460/87-D (Ceat Tyres of India Ltd. v. Collector of Customs, Bombay.)
(v) Tribunal's Order No. 645/1987-D dated 18-8-87 in Appeal No. CD/SB/1136/ 86-D (M .A. Kachwalia & Sons v. Collector of Customs, Bombay)
(vi) 1990 (48) ELT 549 (Tribunal - WRB) Kanta International & Motilal Gupta v.
Collector of Customs
(vii) 1990 (47) ELT 79 (Tribunal - WRB) Universal Automobile & Ancillary Ltd.
v.
Collector of Central Excise and Customs
(viii) 1980 (121) ITR 147 (Bom.) CIT v. Hansa Agency
(ix) 1979 (118) ITR 412 (Cal.) CIT v. Rupa Traders.
All these decisions were cited by the learned advocate before us. The expressions "an order" and "an appeal" used in Section 35B of the Central Excises and Salt Act, 1944 also support this view.
9. I agree with the views expressed by M(T-DCM) in paragraph 8.