TMI Blog2014 (4) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... en after receipt of the subsequent test report, as per the directions of first appellate authority it was not agitated by the Revenue that classification of the imported goods could be other than CTH 38231900 or CTH 15132910. When an issue is not the subject matter of the show cause notice first issued and was not agitated before the lower authorities, it has to be held that Revenue has no justification in agitating an issue before this Bench which was not agitated before the lower authorities - Therefore, the lower authorities cannot be directed to go beyond the scope of the show cause notice - Relying upon NTB International Pvt. Limited vs. CCE, Mumbai-III [2014 (1) TMI 4 - CESTAT NEW DELHI] - There is no merit in the appeal filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same is other than Acid Oil. There is no term called industrial Grade in vegetable oils. Either it is edible or non edible grade. The same is of other than edible grade. The sample is described as by product of Palm Kernal Oil. The sample is composed of Palm Kernal Based Vegetable Oil. It is other than crude RBD oil or it s fractions. 2.2 Based on the above reports, show cause notice B/E 665976 dated 24.4.2010 was issued to the respondent for classifying the imported goods under CTH 15132910. After following the principles of natural justice the classification was decided to be under CTH 15132910 for levy of customs duty by the Adjudicating authority under OIO No. 115/Assistant Commissioner/ICD/IMP/2010 dated 26-18.05.2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (fatty material), is excluded from CTH 15132910, and in fact it is entirely excluded from Chapter 15 of the Customs Tariff Act, 1975. From the findings above, purely based on facts of the instant case, I hold that the nomenclature of the impugned goods qualify as semi-acid oil , and it merits classification under CTSH 38231900 CTA, 1975. 14. In accordance with the above, I set aside the impugned order and hold that the imported goods merit classification under CTSH 38231900 as semi acid oil. The appeal is disposed of accordingly. 3. As the order passed by the first appellate authority was not honoured present respondent approached Gujarat High Court by a SCA 4145 of 2011 and Hon ble High Court vide order dated 12.05.2011 passed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Free Fatty Acid (F.F.A.) calculated as Oleic Acid = 34.0% by wt. 2. Acid Value = 67.5 3. Iodine Value = 35.8 4. Saponification Value = 184.9 5. Total Fatty Matter (TFM) = 93.6% by wt. 6. Unsap. Matter = 12.6% by wt. As per the constants determination as above, the sample under reference does not conform to the specification of Acid Oil laid down in I.S. 12029:1986. Testing method adopted for analysis as laid down in aforesaid IS. F.F.A can also be calculated in terms of palmitic or lauric acid, in specific case, if required. To decide whether it conforms to Palm Kernal Oil or not, some test is still to be carried out and result will be communicated shortly 5. Shri P.M. Dave (Advocate) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting of the sample of imported goods. Even after receipt of the subsequent test report, as per the directions of first appellate authority it was not agitated by the Revenue that classification of the imported goods could be other than CTH 38231900 or CTH 15132910. When an issue is not the subject matter of the show cause notice first issued and was not agitated before the lower authorities, it has to be held that Revenue has no justification in agitating an issue before this Bench which was not agitated before the lower authorities. Accordingly, the lower authorities cannot be directed to go beyond the scope of the show cause notice. 6.1 The above view is further fortified by the case law of NTB International Pvt. Limited vs. CCE, Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) considering the decision cited by the appellant held that these decisions are not relevant to the facts of the case. Therefore, he classified the impugned goods under Chapter Sub-heading 4010.90. Aggrieved from the said order the appellants are in appeal before this Tribunal on the ground that Commissioner (Appeals) has no power to travel beyond the show cause notice. 3. 4. .. 5. .. 6. It is also an admitted fact that in? the show cause notice it was not the issue before adjudicating authority below to classify the product under Chapter Sub-heading 4010.90 of the Central Excise Tariff Act. As the issue before the adjudicating authority was whether the impugned product is classifiable under Chapter sub-he ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
