2011 (2) TMI 533 - AT - Central Excise

Second round of litigation - Non speaking order - Classification - Lip salve cream - Merely supporting the impugned order will not give any benefit to the Revenue. If we take the reverse position in this case where this type of order has been passed by the lower appellate authority in favour of the assessee and the department is in appeal the learned DR will take his stand that this order is not a speaking order - When it is apparent from the record that the impugned order is not a speaking order the DR should be fair enough to accept that this is not a speaking order - The appeal is allowed by way of remand to the lower appellate authority to pass a detailed order

Summary

Issues: Appeal against the legality of the order and merits of the case, whether the impugned order is a speaking order or not.

Analysis:
1. The case involves a second round of litigation where the Tribunal had remanded the matter back to the Commissioner (Appeals) for a fresh decision in accordance with the law.

2. The Commissioner (Appeals) had rejected the appeal in the remand proceedings without independently discussing and analyzing the submissions made by the appellant, leading to a lack of a speaking order.

3. The appellant challenged this decision before the CEGAT, which set aside the impugned order and remanded the case back to the Commissioner (Appeals) for a fresh decision after providing a reasonable opportunity to the appellant.

4. The Tribunal referred to a Supreme Court decision regarding the classification of a product, upholding the lower authority's classification decision and ordering the appellant to pay a differential duty.

5. The appellant, aggrieved by the order, appealed against the legality of the order and merits of the case.

6. During the hearing, the appellant's advocate argued that the lower appellate authority had not applied its mind while passing the impugned order, emphasizing the need for a speaking order.

7. The Revenue's representative contended that the impugned order was a speaking order and within the purview of the law, as directed by the Tribunal.

8. The Tribunal, after examining the impugned order, found that it lacked a discussion on the facts and issues involved, indicating that it was not a speaking order.

9. The Tribunal criticized the Revenue's argument supporting the impugned order, stating that the order was not sustainable in the eyes of the law due to the absence of a proper discussion on the merits of the case.

10. Consequently, the Tribunal set aside the impugned order and allowed the appeal by way of remand, directing the lower appellate authority to pass a detailed order after framing the issues and providing a reasonable opportunity to the appellant to present their case.

This detailed analysis highlights the procedural lapses in the lower appellate authority's decision-making process, emphasizing the importance of issuing speaking orders and ensuring a thorough examination of the facts and issues involved in a case.