9911796707
TMI Blog2023 (5) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... gathered intelligence to the effect that the assessee was using power in the flock printing of dyed fabrics, which is an excisable activity attracting excise duty liability. Accordingly, the jurisdictional Divisional Preventive Officers visited the premises of the assessee on 26/09/2001 and observed that the activity of flock printing was done with the aid of power operated machine. Accordingly, they booked a case against the assessee and issued a show-cause notice dated 22/3/2002 proposing to classify the goods under heading 5907.12 of the CETA and demanding a duty of Rs.5,39,619/- for the fabrics cleared during the period from 07/04/2000 to 26/09/2001. The allegation was that they were using electric power of 220 volts for carrying out the flock printing and accordingly, the said activity is liable to excise duty under the chapter heading mentioned supra. The assessee contended that they were carrying out the activity of flock printing manually and for this purpose, large tables are installed in the factory premises with the cushioned plain platform on which the fabric to be printed is stretched straight so that there are no wrinkles. The printing screens are in the form of recta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequent action of removal of extra clocks by itself is not a process of manufacture. Accordingly, he upheld the order of the lower appellate authority and rejected the departmental appeal. 5. In the departmental appeal the grounds urged are that the process of picking up extra flocks with the help of machine is a necessary and essential process in order to bring the fabrics into finished and marketable condition. If the said process is not carried on, the fabrics subjected to flock printing will not have the effect of velvet touch for which it is processed and hence, in the trade/commercial parlance it will be considered as defective/sub-standard gods. It is amply clear that the subject disputed process is essentially carried out before the finished and excisable goods come in to existence. In view of the above position, it is contended that the flock printing fabrics is rightly classifiable under heading No.5907.12 relating to 'fabrics covered partially or fully with textile flocks or with the preparation containing textile flocks on base fabrics of man-made textile material" attracting a duty of 16% advalorem. On the other hand, the assessee claims that the item is clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the manufacturing process involved use of power, and, consequently, the manufactured excisable goods would fall out of purview of the CEISH 5907.30, and would fall for being classified under the CETSH 5907.12 of the first schedule to the Central Excise Tariff Act, 1985, that the noticee's counsel proceeded to ascribe alternative plea of taking classification out of the purview of Chapter 59 of the first schedule to the Central Excise Tariff Act, 1985. He pressed the Chapter note 5(c) to Chapter 59 therefor. The remand has been ordered solely for this reason. 5. While pleading to take the classification out of the purview of Chapter 59 of the first schedule to the Central Excise Tariff Act, 1985; the notices and their counsel do not propose specific alternate classification. Nor do they provide true and complete description of the manufactured excisable goods to enable their alternate classification, as directed by the CESTAT. 6. The noticee have been specifically asked again therefor on 15.03.2012. This was after conclusion of personal hearing on 17.02.2012 and upon receiving their written submissions in this proceeding. They were also asked to opine on the applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter to the respondent to examine the matter afresh with regard to the classification of the product taking into account the facts of the case and pass an appropriate order after giving an opportunity to the assessee to present their case following the principle of natural justice. The respondent had accordingly passed the impugned O/O against which the present appeal is filed. It is noticed that the appellant had carried out flocking of fabrics. The base fabrics on which the said process was carried out by the appellant was made up of 100% Polyester Filament yarn. It is not under dispute that power had been used in the manufacture of these products. Since Hon'ble CESTAT had sent the matter to the adjudicating authority to examine the matter afresh with regard to the classification of the product taking into account the facts of the case and to pass an appropriate order, the issue that is required to be considered is classification of this product also. Section 2 (f) of the Central Excise Act, 1944 defines manufacture as "[(f) "manufacture" includes any process, - (i) incidental or ancillary to the completion of a manufactured product; (ii) which is specified in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Ltd.[1996 (87) ELT 12 (SC)] D L Steels [2022 (381) ELT 289 (SC)] 6.3 Learned authorized representative reiterates the findings recorded in the impugned order. 7.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 7.2 From the order of the CESTAT remanding the matter to the original authority, it is evident that the matter was remanded with specific direction to determine the correct classification under heading 5907 after consideration of the Chapter Note 5(c) to the Chapter 59 of the Central Excise Tarff. 7.3 Original authority has clearly observed that the said chapter note was applicable in the case and the goods were not classifiable under chapter 5907. Having done so he should have dropped the demand which was made under heading 5907.12. However without assigning any reason he determines the classification under Chapter 54 suo motto without putting the appellant to notice. We are in agreement with the submissions made by the counsel for the appellants relying on various case laws, that adjudicating authority was barred from setting out a new case which travelled beyond in show cause notice. 7.4 Impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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