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Judgment
Rule. Rule, made returnable forthwith. By consent, the petition is taken up for final hearing. Whether on the facts and in the circumstances of the case, the CESTAT by its order dated 21st May, 2012 was justified in remanding the matter back to the Commissioner for fresh adjudication, is the question raised in this writ petition.
The petitioner is engaged in the manufacture of cosmetic products like hair dye, shampoo, colourants, skin care, etc. The above products manufactured by the petitioner were classified into two categories, namely technical products and retail sale products. The technical products are meant for exclusive use in the Saloon/Beauty Parlour and not meant for sale to public. The retail products are first sold to the dealers and the dealers in turn sell the same to the Saloon/Beauty Parlour and the Saloons/Beauty Parlours would then sell it to the customer. The dispute in the present case is, whether the petitioner is justified in clearing the technical products by computing the assessable value on the basis of the maximum retail price (MRP) instead of the transaction value.
By a show cause notice dated 19th June, 2009 the petitioner was called upon to show cause as to why action should not be taken for clearing the technical products by offering the Excise duty on the basis of retail sale price u/s 4A of the Central Excise Act, 1944 [''the Act'' for short] instead of clearing the same by adopting the transaction value u/s 4 of the Act.
After considering the reply and after hearing the petitioner, the Adjudicating Authority by an order in original dated 5th March, 2010 dropped the proceedings.
After reviewing the order of the Adjudicating Authority, the revenue filed an appeal before the CESTAT. By the impugned order dated 21st May, 2012, the CESTAT set aside the order-in-original solely on the ground that the Adjudicating Authority proceeded on the wrong footing that the dispute related to the valuation of both the technical products as also the retail products when in fact the dispute was only with reference to the valuation of technical products. The Tribunal directed the Adjudicating Authority to pass fresh order on merits regarding valuation of only the technical products and also after considering the issue of limitation. Challenging the aforesaid order, the present writ petition is filed.
The grievance of the petitioner is that, once the matter was heard on merits at length by the CESTAT, it was obligatory on the part of the Tribunal to pass order on merits instead of remanding the matter back to the file of the Commissioner. On perusal of the order of CESTAT, it is seen that the Tribunal has not remanded the matter seeking any additional facts. Nowhere in the impugned order it is stated that on the basis of the facts on record, it is not possible to decide the case on merits.
The Apex Court in the case of M/s. M.G. Shahani and Co. (Delhi) Ltd. Vs. Collector of Central Excise, New Delhi, has held that if on the materials on record, the Tribunal can analyse the evidence and arrive at a factual conclusion, the Tribunal ought not to remand the matter and instead hear the matter and pass the order on merits.
In the present case, though the dispute related to the valuation of technical products, the fact that the Adjudicating Authority has held that both the technical products as also the retail sale products are liable to be assessed on the basis of the MRP value, it was open to the Tribunal to decide the appeal only with reference to valuation of technical products and for that purpose it was not proper to set aside the order-in-original and remand the case for fresh adjudication.
In this view of the matter, we quash and set aside the order of the CESTAT dated 21st May, 2012 and direct the Tribunal to pass order on merits and in accordance with law. Rule is made absolute in the above terms with no order as to costs.