Judgment:
1. This is an appeal filed by M/s. Associated Chemical Industries against the impugned order dated 22-4-1987 passed by the Collector of Central Excise (Appeals), Bombay.
2. When the matter was posted for hearing none appeared on behalf of the appellants. On going through the issue involved and on taking into consideration that matter is of 1987, we felt that the matter can be disposed of even in the absence of the party. Accordingly, we proceed to pass this order after hearing Shri Haja Mohideen, learned JDR for the Revenue.
3. In the instant case, Assistant Collector as per his order dated 17-1-1983 withdrew show cause notice without discussing issues on merits. Department has filed an application under Section 35E(2) of the Central Excises and Salt Act before the Collector (Appeals). Collector (Appeals) observed that the assessee/respondents before him failed to file price lists as required under Rule 173C of the Central Excise Rules in respect of the goods captively consumed in the manufacture of S.O. Dyes falling under Tariff Item 14D. They also did not make declaration under Notification No. 201/79-C.E., dated 4-6-1979 and the jurisdictional Collector condoned the provisions for declaration for which an amount of Rs. 2,015.57 should have been dropped. But the lower authority has wrongly dropped the entire proceedings. Therefore, the Asstt. Collector's Order-in-Original dated 17-1-1983 is wrong and is set aside and application under Section 35E(4) allowed. We find that Collector (Appeals) was not correct in passing such an order without giving any direction or remanding the matter to the Assistant Collector to pass fresh order. Allowing the application filed under Section 35E(4) filed by the Department would automatically not result in raising the demand since Assistant Collector has not passed any order on merits. Assistant Collector has withdrawn show cause notice. Since the Collector (Appeals) was of the view that withdrawal of show cause notice without going into the merits was not proper and found his order illegal, he should have directed the Assistant Collector to pass an order on merits with reference to the show cause notice issue by the Assistant Collector. It was contended by the party before us that order passed by the Collector (Appeals) also suffers from denial of principles of natural justice inasmuch as no opportunity was given to them to defend their case. Further, in para 8 of the grounds of appeal, it was submitted by them that it would have been proper, correct and legal on the part of the Collector to pass an order directing the Assistant Collector to decide the issue which still remained to be decided or otherwise the Collector should have examined the case records and determined the correct assessable value before confirming the relief claimed by the respondent before him. Party is correct in contending that Collector was not right in rejecting their claim without remanding or directing the Assistant Collector to re-adjudicate the matter with reference to the so-called notice. Since the Assistant Collector has withdrawn show cause notice and order of withdrawal appears to be not legal as per Collector, the only course open to the Collector (Appeals) was to direct the Assistant Collector to re-adjudicate the matter with reference to the show cause notice. In the facts and circumstances, we are remanding the matter to the concerned Assistant Commissioner to examine the issue on merits with reference to the show cause notice and to pass an appropriate order in accordance with law after providing an opportunity to the appellants.