TMI Blog2023 (9) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... out the exercise as directed in the impugned order, then another issue will crop up whether another show cause notice be issued for the very same period/goods for which earlier show cause notice has already been adjudicated - the adjudicating authority ought to have worked out the MRP and after allowing admissible abatement should have worked out the duty demand instead of issuing directions to the department to do the same after determining the same under Rule 4 ibid. After working out the duty, the adjudicating authority ought to have adjudicated on the issue of penalty or interest also. The invocation of extended period of limitation, which is very important aspect of the matter, has also been left open whereas the same ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge has been made in all these appeals about the manner of adjudication of the show cause notice by the Adjudicating Authority i.e. the Commissioner. Show cause notice dated nil was issued to the assessee stating inter alia that they have misclassified the products manufactured by them, undervalued the said product by not adopting MRP based assessment under section 4A of Central Excise Act, 1944 and also clandestinely clear them from the factory to evade the Central excise duty. The said show cause notice involves both normal as well as extended period of limitation. The learned Commissioner while adjudicating the show cause notice dropped the demand of Rs.1,36,29,729/- on the ground that it relates to trading done from the head office a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed period and leaving open the issues of determination of RSP/MRP and re-determination of the MRP under Rule 4 ibid for the entire past period, these appeals have been filed. According to him Adjudication cannot be done in piecemeal. According to learned counsel the Notification No.49/2008-CE(NT) dt. 24.12.2008, which has been relied upon by the department, specified the goods on which the provision of Section 4A ibid would apply and since the product in issue do not fall within the ambit of Sr.No.97 of the said notification therefore Section 4A ibid has no application at all and there is no need for affixing any MRP/ RSP on the packing. Learned counsel also submits that they sought for cross-examination of the investigation officers for as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise as directed in the impugned order, then another issue will crop up whether another show cause notice be issued for the very same period/goods for which earlier show cause notice has already been adjudicated. We are of the view that the adjudicating authority ought to have worked out the MRP and after allowing admissible abatement should have worked out the duty demand instead of issuing directions to the department to do the same after determining the same under Rule 4 ibid. After working out the duty, the adjudicating authority ought to have adjudicated on the issue of penalty or interest also. Aforesaid shortcomings in the impugned order have been challenged by both the sides. According to the learned Authorised Representative, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d justification for denying the same to the assessee because justice should not only be done but must be seen to be done. 8. In view of the discussions made hereinabove, if we decide these appeals on merit, we would be perpetuating the erroneous course adopted by the learned Commissioner, on the contrary we disapprove such kind of adjudication by the adjudicating authority. At the cost of repetition we again mention that since the dropping of the demand of Rs.1,36,29,729/- has been accepted by the department and no appeal has been filed against it, therefore the same has attained finality. In view of the discussions made in earlier paragraphs the impugned order, to the extent it has been challenged before us, is set aside and remanded ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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