CCE Vs. PETPAK PVT. LTD.

JUDGEMENT

(1.) THIS appeal was filed by the Revenue represented today by the learned JDR. There is no representation for the respondents despite notice nor is there any request of theirs for adjournment. In the circumstances, the appeal is being taken up for disposal.

(2.) THE only ground raised in the present case is that the order of the original authority had been reviewed by the jurisdictional Commissioner on 9.5.2002 which was before the Order -in -Appeal No. 154/02 was passed and, therefore, the ratio of the larger bench decision in LML case might not be applicable. The learned JDR has reiterated this ground. In the LML case, the Revenue's appeal was pursuant to Board's review dated 24.4.2001 which was after the date (29.6.2000) on which the Tribunal had disposed of the assessee's appeal against the Commissioner's order which was reviewed by the Board. After a reading of the order passed by the Larger Bench, I do not find any substance in the above ground raised by the appellant. In the instant case, it is clearly discernible from the chronology of proceedings that, by the time the department's appeal against the Order -in -original was taken up by the Commissioner (Appeals), the said order had already been set aside by the appellate authority in the appeal field by the assessee, whereby the order of the original authority had merged with Order -in -Appeal No. 154/2002, against which the only remedy available to the Revenue was to prefer appeal to the Tribunal. Hence the appeal filed by the Revenue against the order of the original authority was not maintainable after 31.10.02. The impugned order to this effect is correct and the same is sustained. The appeal is dismissed.