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2006 (11) TMI 486 - AT - Central ExciseDemand Duty - ‘backing cloth’ - Show cause notice - final product (Heading 68.01 of the CETA Schedule) - classified under Heading 52.06 of the Schedule to the Central Excise Tariff Act - HELD THAT:- Admittedly, no SCN had been issued for classifying the product under Heading 52.06/52.07 and demanding duty on that basis for any part of the period of dispute (15-12-95 to 28-2-2002). Ld. Commissioner’s order is a determination of duty under sub-section (2) of Section 11A of the Central Excise Act and the same is on a basis different from the one laid down by the department in the relevant SCNs. The order classified the product differently and demanded duty at higher rates. Such action is not permissible in law as held by the A.P. High Court in Raphael Pharmaceuticals case[1988 (6) TMI 51 - HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYD.]. Hence, we hold that the demand of ADE (GSI) or that of BED on the subject goods under Heading 52.06/52.07 is not sustainable in law for want of show-cause notice for the purpose and consequently the penalties imposed on the appellants are also liable to be vacated. In the result, the impugned orders are set aside and these appeals are allowed. However, this order does not stand in the way of the department issuing proper show-cause notice to the party and proceeding further in accordance with law.
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