2009 (8) TMI 869 - AT - Central Excise

Summary

Issues involved:
Appeal challenging order of Commissioner (Appeals) on the grounds of non-speaking order, incorrect application of principle of merger, and lack of consideration of the issues involved.

Analysis:
1. The appellant entered into a contract for supply of M.S. Pipes on FOR delivery at site basis, including sites in Gujarat. The respondent alleged non-admissible deductions in the contracted price for transportation and Gujarat Entry tax. The adjudicating authority confirmed certain demands but dropped a portion. The Commissioner (Appeals) allowed the respondent's appeal based on the doctrine of Merger, setting aside the earlier order.

2. The appellant contended that the order was non-speaking, contrary to the law on merger, and raised different issues from the appellant's appeal. Citing Mauria Udyog Limited case, the appellant argued against the automatic allowance of the Department's appeal based on a different issue. The lower appellate authority disposed of the appeal assuming merger, ignoring the differing issues involved, as clarified by the Apex Court.

3. The appellant challenged various grounds in the impugned order, emphasizing the lower authority's failure to address the issues at hand. The order incorrectly applied the principle of merger, linking the appellant's appeal outcome to the Department's appeal result, despite distinct issues involved. The Apex Court's ruling in Mauria Udyog Limited case highlighted the inapplicability of merger in such scenarios, emphasizing the need for separate consideration of distinct issues.

4. The impugned order was deemed non-speaking and lacked consideration of the relevant issues. Consequently, the appeal succeeded on the grounds of incorrect application of merger principle and non-speaking order. The order was set aside, remanding the matter to the Commissioner (Appeals) for a fresh decision after hearing the parties. The appeal was to be expedited and decided by a specified date, with no expressed opinion on the case's merits.

5. In conclusion, the appeal was disposed of based on the identified grounds of incorrect application of the merger principle and the non-speaking nature of the impugned order. The matter was remanded for a fresh decision, emphasizing the need for separate consideration of issues and adherence to legal principles in appellate proceedings.