ORDER
S.L. Peeran, Member (J)
1. This is a Revenue appeal against the Order-in-Original No. 38/96 dated 29th March, 1996 passed by the Commissioner of Central Excise, Hyderabad, dropping the proceedings initiated in the show cause notice. O.R. No. 117/91-CE which was adjudicated by the Assistant Commissioner and the demands confirmed in terms of the allegations made therein on the ground that there was suppression in the matter and larger period was invokable and further that the appellants had no case on merits for the reasons stated both in the show cause notice and in the Order-in-Original. The Commissioner has not gone into the aspect pertaining to merits, although he has recorded the facts of the case and submissions of both sides in his order in first eight pages. The finding was confined only to extension of larger period in the matter in para 18 of his order. In the said para the Commissioner has recorded that the R.T. 12 returns had been finalised and that he had examined the R.T.12s of September 1986, December 1986, January 1987, March 1988, March 1989, December 1989 and March 1990 and concluded that there was finality to the same and hence on the ground of time bar, he set aside the Order-in-Original.
2. The Revenue in this appeal have contended that the Commissioner ought to have expressed his opinion on various facts initiated in investigation which clearly demonstrated that there was suppression of facts. It is stated that the Commissioner has committed a mistake in proceeding to hold that there was a time bar only on the basis of finality of R.T. 12 returns without taking into consideration the various facts which were revealed during the investigation as contained in the show cause notice. It is contended that the Commissioner ought to have examined the aspect of limitation in the light of the facts which alleged to suppression and not on the basis of approval of R.T.12 returns only, hence, the order is not a speaking order. It is also stated that the merits of the case were also required to have been considered and as all these aspects have not been considered, therefore, the order impugned is not a legal and proper order for consideration.
3. Learned DR Shri S. Kannan argued on the basis of these grounds and contends that the finality of R.T.12 returns is a different aspect than the aspect re-open to investigation, wherein the facts not brought to the notice revealed evasion of duty. He submits that in the present case, the investigation led to clear conclusion that there was undervaluation of payment of Rs. 43,24,049.92, inasmuch as that the assessee had not brought to the notice about the cash memos and delivery memos issued by M/s. Namdhari Industries and the department had proceeded on the basis of invoices and the earlier price list filed by the assessee was therefore, not acceptable. He submits that this aspect ought to have been gone into while giving the findings on time bar and as this crucial aspect of the matter has not been considered, besides no order having been passed on merits, therefore, the matter is required to be remanded for de novo consideration.
4. The learned Advocate has taken pains to file a detailed paper book including written submissions and case laws. He submits that the issue is no longer res Integra on merits, as it is covered by the judgment of Hon’ble Apex Court rendered in the case of Ujagar Prints, wherein it had been clearly laid down the value as declared by the job worker is required to be taken for the purpose of assessment. He submits that this judgment has since been followed in large number of judgments as noted hereinbelow:
CCE v. Pharmasia Ltd. 1996 (63) ECR 380 (T)
J.B. Kharwar Sons v. UOI
Asia Tobacco Company Ltd. v. ACCE
Kwality Silk Mills and Anr. v. UOI 1991 (33) ECR 418 (Guj.)
Vijay Enterprises v. STO
UOI v. Umesh Dhaimode
He further submits that a similar order has been passed by the Commissioner in their own case on merits, which was appealed by the Revenue in Appeal No. E/1470/95 and their appeal was dismissed by the Tribunal Vide Final Order No. 2020/98 dated 9.10.98 and it had been clearly held therein that the ratio of M/s. Ujagar Prints would apply and that Revenue appeal was rejected. He submits that the issue being an identical, the Tribunal judgment in their own case rejecting the Revenue appeal would apply to the facts of the present case and on this ground alone, the Revenue appeal is required to be rejected. He further submit that there was no suppression in the matter and this issue which was lingering between the department and themselves and the matter had been taken up before the High Court in Writ Petition No. 6572/82 and the Hon’ble Andhra Pradesh High Court had initially directed the assessee to clear the goods on the basis of valuation declared by them and on their execution of bank guarantee and bonds. Thereafter, the Writ Petition was disposed of directing the assessee to seek avenues available under the Act. He submits that the issue pertaining to the value to be adopted in the present case was not an aspect not known to the department and this was agitated for a long time from 1982 onwards and therefore, it cannot be said that these facts were not available to the department as now contended by the department in the appeal memo and hence the order cannot be assailed. He submits that M/s. Namdhari Industries was only a wholesale dealer and his invoices or receipts were not known to the appellants and they cannot be also taken for the purpose of valuation as held by the Tribunal in the case of Saheli Synthetics (P) Ltd. as reported in 1999 (112) ELT 765 (SC). He further pointed out from the said judgment that so long as the supplier and the processor are in the position of principal to principal and the transactions are at arm’s length, the assessable value will be the sum total of the cost of raw materials supplied, the value of job work done and the manufacturing profit of the job worker. He submits that in the present case also the same ratio would apply. He, therefore, submits that as the issues have already been settled by the Tribunal in their cases and also the issues have been dealt with in the angle of time bar in similar matters, therefore, the Revenue appeal is required to be dismissed.
5. On a careful consideration of the submissions, we notice that the Commissioner has given a very brief finding on time bar, without taking into consideration the various facts alleged in the show cause notice which according to the Revenue, are details leading to suppression of facts. The Commissioner ought to have dealt with all these facts and has given findings whether there was suppression in that light or not? The Commissioner has however, restricted to give findings only in the light of R.T. 12 returns, without taking into consideration the various factors and facts which are alleged in the show cause notice said to be led to suppression. Although there is sufficient force in the learned counsel’s plea that all these facts were known to the department from 1982 onwards, as proceedings were lingering in the High Court and clearances were being made in terms of the interim order of the High Court and similar appeals had been disposed of in the light of the decision in the case of Ujagar Prints, but however, we notice that the impugned order is not a speaking order. The Commissioner ought to have examined the Tribunal judgment in their own case by which the Revenue appeals were rejected by the Final Order No. 2020/98 dated 9.10.98 and also should have taken into consideration the various submissions made by the party and various case laws cited. As the impugned order is not a speaking order which violative of principles of natural justice, therefore, we are of the considered opinion that the impugned order is required to be set aside and matter remanded to the Commissioner (Appeals) for de novo consideration in the light of the various submissions and case laws relied upon by the assessee in the matter. The Commissioner should take up the matter expeditiously within three months from the date of receipt of this order and decide the case de novo. The Commissioner ought to have examined the issue in the light of the Hon’ble Apex Court judgment rendered in the case of Ujagar Prints, which has since been followed by the Tribunal in large number of judgments including in the assessee’s own case as noted above.
6. Thus, the appeal is allowed by way of remand.