Commission issue must be examined on the merits first by the adjudicating authority after full opportunity to both sides.

The show cause notice specifically raised commission as an independent issue, so the Tribunal was wrong to decline examination on the ground that it had not been pleaded. The proper course was for the adjudicating authority to consider that issue first on the merits, after allowing both sides to place their submissions and material. The Tribunal's order was therefore set aside only to the extent relating to the commission issue, and that issue was remitted for fresh decision by the adjudicating authority.

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Issues: Whether the question relating to commission was raised in the show cause notice and whether the matter ought to be decided first by the adjudicating authority.

Analysis: The show cause notice specifically raised commission as an independent issue. The Customs, Excise and Service Tax Appellate Tribunal erred in declining to consider that question on the premise that it had not been raised. Instead of sending the matter back to the Tribunal, the appropriate course was for the adjudicating authority to examine the issue in the first instance on merits after giving both sides an opportunity to place their submissions and material.

Conclusion: The Tribunal's order was set aside to the limited extent of the commission issue, and that issue was remitted to the adjudicating authority for fresh decision on merits.

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