TMI Blog2023 (5) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... order in most mechanical manner confirms the findings recorded by the original authority without giving any thought or reason - there are no merits in the impugned order - appeal allowed. - Excise Appeal No. 1808 of 2012 - FINAL ORDER NO. 85741/2023 - Dated:- 28-2-2023 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) And HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Mihir Mehta with Shri Mohit Rawal, Advocates, for the Appellant Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorised Representative for the Respondent ORDER PER : SANJIV SRIVASTAVA This appeal is directed against order in appeal No BR(52) MV/2012 dated 31.08.2012. By the impugned order Commissioner (Appeals) has upheld Order in Original No 283- 284/6-7/V/2012/ADDL/AK DATED 30.04.2012 OF THE Additional Commissioner Central Excise Mumbai V. 2. CESTAT had vide Order No A/130/2011/EB/C-II remanded the matter back to original authority for de novo consideration making observations as follows: 2. Briefly stated the facts of the case are as follows:- The Assessee M/s. Karan's Creations are engaged in the manufacture of flock printed fabrics falling under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adhesive. The frame which drops the flock powder also has a small electric box capable of producing electrostatic charge This frame with the electrostatic box is moved from one end of the fabrics to the other after the flock has been spread manually on the fabrics already printed with the adhesive, thereby attracting the superfluous and extra flock from the fabric bed. The static electric box does not take part in the actual printing process but it helps in collecting extra flock powder from the surface on the already printed fabrics. 3. The adjudicating authority after considering the submissions made came to the conclusion that the processes undertaken cannot be treated as manufacture of flock printed fabrics with the aid of power and accordingly, he dropped the demand raised in the show cause notice dated 22/03/2002. 4. The department filed an appeal before the Commissioner (Appeals) who vide his order dated 30/06/2003 also held the same view that use of static generating box to remove extra flocks from the printed fabrics after manufacture cannot be construed as amounting to manufacture with the aid of power. He further observed that the fabrics had already been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) to Chapter 59. Since this point has not been taken up for consideration either, before the adjudicating authority or before the first appellate authority and has been raised for the first time before this Tribunal, we are of the view that the matter needs to be remitted back to the adjudicating authority for fresh consideration of the point now raised. As pointed out by the Ld. Counsel for the respondent assessee, this Tribunal in the case of Polycone Paper Ltd., Vs. CC 1994 (70) ELT 225 (Tri.) had held that if the appeal involved the question of correct classification of goods on which a ruling would have to be given, it would not in the interest of justice or conducive to a proper disposal, if the appellants are prevented from raising the new ground . Accordingly, we remand the matter back 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 pass an appropriate order after giving an opportunity to the assessee to present their case following the principles of natural justice. 3. In the remand proceedings original authority has confirmed the demand against the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Tariff Act, 1985 did not exist in the period wherefor the law was declared in application of the harmonious construction principles. It came to be inserted later. 9. As the noticee submit that the base fabrics, whereupon the process of flocking was carried out by them with the aid of power, was made up of 100% polyester filament yarn; the finished excisable goods of the noticee would fall for classification under the tariff heading 5406.23 of the first schedule to the Central Excise Tarifi Act, 1985. The effective rate of duty for the relevant period thereon was 16% (BED) and 8% (AED) ad valorem. The demands of the payable duties of excise, in the subject notice, have been made at the rates of 16% (BED) and 5% (AED) ad valorem. This would only be in Application of the remand directions of the CESTAT. Since the consequent demands would travel beyond what has been proposed in the notice; the final confirmations would only be to the extent of the payable duty demanded in the subject notion. It is a settled law that demands can be confirmed only to the extent made in a show cause notice. 4. Commissioner (Appeals) has in the impugned order recorded following finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s accordingly payable on them along with interest. 5. Aggrieved appellants have filed this appeal. 6.1 We have heard Shri Mihir Mehta and Mohit Rawal Advocates for the appellant and Shri Sunil Kumar Katiyar Assistant Commissioner, Authorized representative for the revenue. 6.2 Arguing for the appellant learned counsel submits: From the perusal of the orders of the lower authorities it is evident that the order has travelled beyond the show cause notice. The classification has been determined under the heading for which they were never put to notice. It is settled law as per the various decisions that the authorities could not have made out a new case in remand proceedings which was not there in show cause notice. Reliance on:- Caprihans India Ltd. [2015 (325) ELT 632 (SC) Haver Standar India P Ltd. [2009 (245) ELT 216 (T-Ahmd)] Bhor Industries Ltd. [2017 (358) ELT 761 (TMum)] Mitsui Chemicals India Pvt Ltd. [2019 (369) ELT 1291 (T-All) Ballarpur Industries Ltd. [2007 (215) ELT 489 (SC) Brindavan Beverages (P) Ltd [2007 (213) ELT 487 (SC)] It is also settled law that burden of determining the correct classification is o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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