IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.41 OF 2004 Commissioner of Central Excise & Service Tax.....Appellant Versus M/s.Thakkar Poly Pack Industries ...Respondent Mr. R.G. Bhat with Mr. J.B. Mishra for the Appellant. None for the Respondent CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATED : 11TH JUNE, 2009 P.C. None present for the Respondent when the matter is called out though served. The Appeal was admitted on the following questions:- “i) Whether the principle of “doctrine of merger” held to apply vis a vis the provisions of Section 358 (4) and Section 35E(4) in the case of CCE, New Delhi vs. LML Ltd., (2002 (143) ELT 431 (Trib) in view of the availability of option before the department to file memorandum of cross objections against Respondent appeal before the Appellate Tribunal, could be said to apply in appeals before the Commissioner (Appeals) when no specific provision for the Department to file memorandum of cross objections against Respondent against is available under the Central Excise Act, 1944?. ii) Whether the doctrine of merger is applicable in case where the authority has no jurisdiction to go into the issue suo moto, which has not been raised before them.” 2. Considering the judgment of this Court in Central Excise vs. Godrej & Boyce Manufacturing Co. Ltd. & other appeals decided on 17th December, 2008 the impugned order is set aside. The matter is remanded back to the Tribunal for disposal of the Appeals in the light of the law laid down in the aforesaid judgment. Appeal disposed of accordingly. (J.H. BHATIA,J.) (F.I. REBELLO,J.)