De novo adjudication requires a fresh order after remand; relying on a set-aside order makes the proceedings unsustainable.

An adjudication order cannot stand where the earlier order had already been set aside and ceased to exist. In remand proceedings, the Commissioner must pass a fresh de novo order determining duty and penalty on the basis of the record and the Tribunal's directions; mere reference to the earlier, non-existent order is a jurisdictional defect going to the root of the matter. The assessees must also be given an opportunity to produce evidence in the fresh proceedings. The impugned order was therefore unsustainable and was set aside, with the matter remitted for fresh adjudication in accordance with the earlier remand directions.

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Issues: Whether the adjudication order could stand after the earlier order had already been set aside and the matter remanded, and whether the proceedings were liable to be remitted once again to the Commissioner.

Analysis: The earlier adjudication order had ceased to exist after being set aside by the Tribunal. In such a situation, the Commissioner was required to pass a fresh adjudication order determining the duty and penalty afresh. Instead, the impugned order merely referred back to the earlier, non-existent order and did not constitute a proper order in adjudication. That defect went to the root of the matter. As the remand directions of the Tribunal had to be followed and the assessees were to be given an opportunity to produce evidence in the de novo proceedings, the impugned order could not be sustained.

Conclusion: The impugned order was set aside and the matter was remitted to the Commissioner for fresh adjudication in accordance with the Tribunal's earlier directions.

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