TMI Blog2014 (2) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... ority has abandoned the allegations made in the show cause notice and has held that the price charged by M/s US Vitamins Ltd., cannot be the price on which excise duty can be demanded from the main appellant. Having recorded such findings, the adjudicating authority in all fairness should have dropped the proceedings initiated but he has gone beyond the allegations and has confirmed demands by recordings findings which were not alleged in the show cause notice, hence could not be met by the main appellant - Therefore, impugned orders that confirms the demands, interest and imposes penalties on all appellants on a ground different than the allegations made in the show cause notice, is unsustainable and is liable to be set aside - Decided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tentions raised by the appellant and confirmed the demands. Aggrieved by such orders, all the three appellants preferred to appear before the tribunal which were heard and disposed of by an order dtd 3.1.2005, wherein tribunal set aside impugned order and ordered denovo adjudication. The impugned order is passed in the denovo adjudication following direction given by the tribunal in the order dtd 3.1.2005. 4. Ld Counsel appearing on behalf of all the appellants would take us through the allegations in the show cause notice and findings recorded by the adjudicating authority. It is his submission that the show cause notice alleged that the appellant having manufactured the pharmaceuticals goods for M/s US Vitamins, should have discharged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is his submission that M/s US Vitamins has paid prices as contracted with appellant, alongwith appropriate excise duty. It is his submission that the main appellant herein had valued the products cleared from factory premises at a price lower than the contracted price and showing the sale of the same from non-existing depot. It is his submission that the appellant had collected amount of excise duty by resorting to such under valuation of goods. He would submit that the findings of the adjudicating authority clearly confirm the demands only on the differential value which has not been contracted by the main appellant and has not considered the value of sale of products by M/s US Vitamins. 6. We have considered the submissions made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears that the assessable value of MVI 10 ml ampoule for payment of Central Excise Duty by M/s MLPL should be equal to the price at which the product is currently being sold by M/s USV Ltd., to their wholesale dealers and C F agents ie., Rs 10.16 per ampoule. 10. It can be seen from the above reproduced allegations that the main appellant was to show cause as to why the price of the goods as has been charged by M/s US Vitamins be not considered for discharge of excise duty is the allegation. The adjudicating authority in denovo proceedings has recorded the following findings : Since, the SCN demands the duty on the value at which M/s USV Ltd sold the goods to their customers, which is one step ahead of the actual duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in all fairness should have dropped the proceedings initiated but he has gone beyond the allegations and has confirmed demands by recordings findings which were not alleged in the show cause notice, hence could not be met by the main appellant. 12. In our view, the demands confirmed on different ground which was never an allegation in the show cause notice is fatal to the case of revenue, as has been held by the apex court of M/s Bellarpur Industries Ltd wherein the Lordship has held in It is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. 13. We also find that the apex court in the case of M/s Champdany Industries Ltd in Para 50 59 settled law which is as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Oswal Agro (supra) does not at all advance the case of the Revenue. Apart from that the said decision was rendered under the old Tariff Act when there was nothing like Chapter Note and Section Note. Oswal Agro (supra) has no application here. 55. Learned counsel relied also on the decision of this Court in Novopan India Ltd, Hyderabad v. Collector of Central Excise and Customs, Hyderabad - 1994 Supp. (3) SCC 606. In that case, the Court interpreted the provision of Old Tariff Act with regard to exemption and held in paragraph 16 that a person invoking an exemption provision must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, the benefit of exemption cannot be claimed by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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