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TMI Blog2016 (3) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... es and Cables falling under Chapter 85 and on refractory falling under Chapter 69. A show cause notice was issued proposing disallowance of the credit on the aforesaid items on the ground that these are not Capital goods in terms of definition of Capital goods. In the adjudication, the adjudicating authority has confirmed the demand of Cenvat credit and imposed penalty under Section 11AC and interest under Section 11AB. In the appeal by the appellant the Commissioner(Appeals) rejected the appeal not only on the ground that items are not capital goods but also on the ground that invoices of the Wires and Cables indicate the address of the applicant as well as applicants site and therefore it was contended that Wires and Cables were not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary issue which can be taken as held in the judgment of the Kerala High Court in case of Commr. of Central Excise Vs. Premier Footwear Products (P) Ltd[2011(273) E.L.T. 169(Ker)] 5. I have carefully considered the submissions made by both sides and perused the record. 6. On the issue whether the wires and cables falling under Chapter heading 85 and refractory falling under Chapter heading 69 are capital goods or otherwise, I reproduce the definition of "Capital goods" : Rule 2. Definitions. - In these rules, unless the context otherwise requires,- (a) "capital goods" means:- (A) the following goods, namely:- (i)all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading No. 68.05 grinding wheels and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order, this is a matter of fact and it is necessary on part of the Revenue to investigate that only on the basis that two addresses mentioned on the invoices whether the Capital goods received in the factory and used in the factory, however no such exercise was carried out by the Revenue and issue was not raised in the show cause notice, even adjudicating authority also was not given any finding on this issue. I agree with the Ld. Counsel that this fresh issue raised first time in the impugned order and the same was not raised in the show cause notice. The appellant was not put to notice on this issue therefore it is not open for the Revenue to decide the matter on a issue which is not embodied in the show cause notice. The judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue. In view of the above judgments, it is settled law that new case cannot be made out after issuance of show cause notice and after passing the adjudication order. As regard the judgment relied upon by the Ld. A.R. in case of Premier Footwear Products (P) Ltd(supra) the facts are different in the said case as the subsidiary issue was of applicable rate of duty. It is very obvious that if any exemption denied at any stage, for the purpose of excise duty correct rate of duty has to be applied. In view of the facts of this case the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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