Full Judgment
2. The appellants sell their goods at factory gate on payment of duty to various customers. Some goods are transferred to their own depots on payment of duty on the basis of stock transfer invoices. The prices at which such goods were sold from the depots varied and were not the same at the prices at which the goods were cleared from the factory on payment of duty.
3. 16 show cause notices were issued covering the period. The allegations were identical. It was claimed that the prices at which the goods were transferred to their own depots were lower than the prices at which goods were sold to outside. It was also alleged that different prices were charged for the same goods from the same buyers and the same phenomenon had recurred in Ex-depot sales also. It was claimed that such sales at differential prices were made without any determination of classes of buyers under proviso (i) of Clause (a) of Sub-section (1) of Section 4 of the Central Excise Act 1944. It was claimed that by virtue of these practices, short levy had occurred to the extent of Rs. 2,76,43,950.11/-. The Assistant Commissioner observed that when the practice of filing price list was in vogue, assessees were filing both Part-I and Part-II price lists. At a later date also different prices were charged to different classes of buyers. He observed that the show cause notice did not allege that such sales on contract basis were not genuine. He referred to and relied upon a number of judgments where the Tribunal had upheld different prices being charged from different persons provided they were motivated by commercial reason alone. He relied upon certain instructions issued by the Board which were passed subsequent to the amendment whereby the prices charged at the depots were made the basis of assessment provided the goods were deposited in such depots without payment of duty. On this analysis he dropped the demand.
4. The jurisdictional Commissioner caused the review of this order to be made, which was treated as an appeal resulting in the passing of the impugned order. The grounds made were several. It was claimed that the Assistant Commissioner had not gone into the allegations but had travelled in another area. The reliance of the Assistant Commissioner on the Board Circular dated 14-10-1996 was claimed to be wrong. His finding on facts were also challenged.
5. In his impugned order the Commissioner listed various grounds raised before him in the review application. He observed that the grounds raised in the show cause notice were not covered by the Assistant Commissioner. He referred to the amendment to Section 4, dated 28-9-1996. He referred to and relied upon Tribunal's order reproduced in, 2000 (122) E.L.T. 171 (Tribunal) in the case of Camphor and Allied Products Ltd. v. Commissioner of Central Excise. He observed that the Assistant Commissioner order was unsustainable. He remanded the issue back to the adjudicating authority for de novo adjudication directing him to keep in mind his observation and to pass fresh order as per the law.
6. Counsel for the appellant submits that this amounts to limiting the jurisdiction of the Assistant Collector. The remand order is in fact the order the Assistant Commissioner is expected to pass. He submits that on this ground the impugned order be set aside.
7. We have considered the submissions. We have seen the Order-in-Original and various grounds made in the review application.
We find that the Commissioner (Appeals) has taken out the context the submission that the Assistant Commissioner had travelled beyond his jurisdiction. Certain case law was placed before him. On examination he found that the facts being identical the law was applicable. This action of his cannot be termed to travelling beyond the scope of the show cause notice. The ld. Commissioner (Appeals) was wrong in adopting this ground raised in the review application as the ground for setting aside the order. We further find that these reference to the amendment dated 28-9-1996 is also not relevant. The amendment speaks of the situation when the goods are not cleared from the factory gate on payment of duty, but are transferred to the depots or other places without payment of duty. In that situation alone the multiplicity of points of removal occurs. Where the goods are cleared on payment of duty at the factory gate and are later sold through the depots, this provision may not have any application.
8. We have also seen the judgment on which reliance has been placed upon and we find that in the facts of the case that judgment may not have any application.
9. On perusal of the various facts and the arguments made before us. We observe that the ld. Commissioner (Appeals) has failed to appreciate the issue placed before him. What was required of him was to take each point made in the review application and to examine it in the eye of the law. It was not for him to adopt as prima facie correct each argument placed therein and on that basis to pass the entire issue back to the Assistant Commissioner for adjudication de novo.
10. In this conviction we set aside the orders passed by him and remand the proceedings back to the Commissioner (Appeals) with the directions that he shall go into the issues as discussed by us above; placing reliance on the relevant case law and to pass an appropriate order.