1. These appeals are under Section 35-L(b) of the Central Excise and Salt Act, 1944 against a common order dated 4-9-1990 made by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in a bunch of appeals arising out of the order dated 22-12-1989 passed by the Collector of Central Excise (Appeals), New Delhi. Common questions are involved in these appeals.
2. The Tribunal by the impugned order came to the conclusion that it was bound by an earlier decision of the Tribunal and, therefore, the controversy in these appeals was not open for a fresh consideration by the Tribunal. The Tribunal had indicated that it was barred from examining the case on merits on the principle of res judicata and judicial propriety. For this reason the Tribunal did not examine the facts on which the point of law involved was raised for determination. The appeals were dismissed for this reason alone. However, while dismissing the appeals the Tribunal at the end observed as follows:
“True, the learned advocate advanced some important arguments while submitting that they had a factory gate sale and in the light of the Supreme Court's judgment in Indian Oxygen, such sale price had to form the basis of assessment. We also take note of his plea that these appellants are the only factory in the country who pay excise duty in retail basis. We have got verified the correctness of these submissions but if this is true (which can be verified), it must be said that the appellants have a very good case at least to begin with. However, these circumstances cannot result in our ignoring the earlier judgment for the simple reason that the said judgment was based on the same facts and it would not be judicial propriety for us to sit over the judgment and in effect to review it.”
3. The learned counsel for the respondents, in all fairness, did not attempt to support the impugned order on the only ground on which the Tribunal dismissed the appeals before it. It is not disputed before us that the findings on the disputed facts between the parties recorded by the Assistant Collector and on appeal by the Collector are at variance. The controversy arose as a result of the appellants’ claim for deduction of Rs 5000 from the retail selling price as mentioned in Part V of the price list. According to the appellants this deduction has to be made for determination of the wholesale cash price which is material for computing the excise duty.
4. It may be mentioned, as appears from the orders made by the Assistant Collector and the Collector that the appellants’ case with regard to the nature of the sum of Rs 5000 claimed as deduction was not consistent as observed by those authorities. On behalf of the respondent, it was contended that no such deduction was permissible at all. In view of this dispute between the parties, the nature of this amount of Rs 5000 claimed as deduction, by the appellant and the justification for the deduction of that amount or any part thereof was a matter in controversy between the parties.
5. The Assistant Collector in his order observed as under:
“I observe that the party has claimed deduction of Rs 5000 from the selling prices mentioned in Part V price lists. These deductions as per the party account for the difference between the wholesale and retail prices. In this connection, I observe that the amount of Rs 5000 is charged from the buyer, on account of three free after-sale services and the dealer's commission.”
6. On the other hand, the Collector on appeal by the appellant observed as under:
“I have carefully considered the submissions made by the appellant. I observe that since it is an admitted fact that no part of the amount of Rs 5000 claimed as deduction, is passed on to the trade, this amount does not fall in the category of trade discount. However, as argued by the appellants at the time of personal hearing, it is ‘dealers’ commission’ that they are claiming as deduction, I find that as far as the amount of Rs 800 is concerned, since this is stated to be paid to the dealers on account of three free services rendered, this amount will undoubtedly form part of the assessable value. As regards the remaining amount of Rs 4400, I find that there is no agreement of any kind with the dealers i.e whether the commission is paid to them for rendering certain services. I find that the appellants have claimed this deduction on theoretical basis in terms of Rule 6(a) of the Valuation Rules, 1975, without substantiating their claim, inasmuch as they have not spelt out as to what is the nature of such ‘services’ that are rendered by their dealers so that the admissibility of such for exclusion from assessable value can be examined.”
Further it has observed as under:
“Hence, the appellants claim for deduction on account of ‘dealers’ margin’ is not admissible. It is further observed that the appellants have changed their stand from time to time while claiming deduction for the amount of Rs 5000. At first they claimed deduction of Rs 5000 as trade discount, subsequently as dealers’ commission and lastly in terms of Rule 6(a) of the Valuation Rules on the ground that the wholesale price is available in their case.”
7. It is, therefore, obvious and rightly not disputed before us that the findings of the Collector on appeal about the nature of the amount of Rs 5000 claimed as deduction by the appellants and the justification of that deduction were at variance with the findings rendered by the Assistant Collector. In this situation it was incumbent upon the Tribunal to first determine the nature of this amount and then to proceed for deciding the justification for granting that deduction. The Tribunal without adverting to this obvious position proceeded on the misapprehension that it was precluded from deciding the question on merits because of an earlier decision of the Tribunal regarding an earlier period. The only reason on which the Tribunal dismissed the appeal without going into the facts on the basis of which the question of law had to be decided, is, therefore, unsustainable. In this situation, where the Tribunal has not recorded its findings on the disputed facts and there being variance in the findings rendered by the Assistant Collector and the Collector, the only appropriate course to adopt is to remit the matter to the Tribunal for a fresh decision.
8. Consequently, the appeals are allowed. The impugned common order passed by the Tribunal is set aside, and these matters are remitted to the Tribunal for a fresh decision in accordance with law. The Tribunal shall give fresh opportunity of hearing to both the parties and then decide the appeals afresh on merits in accordance with law. In the circumstances of the case, there will be no order for costs.