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TMI Blog1992 (1) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... ercerising, etc." 2. The question has been examined in consultation with the Ministry of Law and the Comptroller & Auditor General. The Board has been advised that since the base fabric and the embroidery fall under two different tariff sub-items, once the base fabric has been converted into embroidery, it goes out of the tariff sub-item for the base fabric and becomes classsifiable under the tariff sub-item for the embroidered fabric. Such embroidered fabric, even if subjected to processing, will not again fall under the tariff sub-item for base fabric. Therefore, no further processing duty is leviable on base fabric which has been subjected again to processing after being embroidered." (Emphasis supplied) 3. The Assistant Collector did not accept the appellant's claim for exemption from duty and, issued a show cause notice asking them to show cause why duty should not be demanded from them on processing of embroidered fabrics under sub-heading 5805.13 read with Notification 255/82 dt. 8-11-1982 after modifying the classification list in terms of Rule 173B of the Central Excise Rules, 1944. The appellants contested the demand on the ground that the tariff description of Heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assistant Collector was different from the one on the basis of which he passed the final order; that it is not mentioned anywhere that the "embroidery in the piece" should be of the same standard uniform lengths; that Board's clarification of 1974 was continued to be followed all along and was still applicable considering that the base fabric and embroidered fabric were classifiable under different items/headings. 7. Arguing for the appellants, Shri A.K. Jain, the ld. Counsel, cited the decisions of the Tribunal in the case of Shri Kanta Haldar v. Collector of Central Excise [1990 (53) E.L.T 425] and in the case of IGE (India) Ltd. v. Collector of Central Excise [1990 (53) E.L.T 461] in both of which it was decided that an adjudication order cannot traverse beyond the allegations made in the show cause notice. Shri L.C. Chakraborty, ld. S.D.R., fairly conceded that while the classification proposed in the show cause notice was under sub-heading 5805.13 read with exemption Notification 255/82, the Assistant Collector decided the classification to be under a different Chapter altogether, viz., Chapter 52. 8. Shri Chakraborty also submitted that the Tribunal has held in a num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odified prospectively by the Assistant Collector by following the prescribed procedure. He cited the decision of the Supreme Court in the case of Elson Machines Pvt. Ltd. v. Collector of Central Excise [1988 (38) E.L.T. 571] in support of his contention. 12. Citing the publication 'Words & Phrases' by S.B. Sarkar about the meaning of the expression "embroidered in the piece", Shri Chakraborty submitted that the word 'piece' means 'a definite quality, as of cloth or paper' [Radha Fancy Price Goods Merchants v. State of Kerala 1981 (48) STC 361 (Ker.)]. He stated that since the length of the pieces in the present case varied from 5 metres to 14 metres, the subject goods could not merit classification under Chapter 58 but under Chapter 52 depending upon various factors like value, count, etc. 13. Replying, Shri Jain submitted that sub-heading 5805.19 not having been cited in the show cause notice, the department could not seek classification of the goods under that sub-heading at this stage. He cited the following decisions on this point: (a) Central Tool Room, Ludhiana v. Collector of Central Excise, Chandigarh [1985 (21) E.L.T. 699 (Tri.) = 1985 ECR 2088] (b) Collector of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of remand is that since all the facts for deciding the appeal were available to the Tribunal, it was not perissible to remand the matter to the lower authorities. The M.P. High Court has held in Raja Vikramaditya's case (supra) that the principles to be followed in such matters have been laid down by the Calcutta High Court in the case of United Commercial Bank v. C.I.T. (1982) 1371.R. 434. To quote"........... while the Tribunal's power of remanding an appropriate case to investigate fresh facts cannot be disputed, it must be borne in mind that the power must be exercised with proper discretion and that it should not be exercised if all the basic facts required for disposal of the matter is already on record." (Emphasis added) 19. The High Court, further, held that - "Keeping in view the aforesaid principles, let us turn to the facts of the instant case. The Appellate Assistant Commissioner had before him the entire material on record, the receipts issued on behalf of the assessee in respect of the agreements entered into by the purchasers, the sale deeds executed by them and the sale deeds of plots of land in the neighbourhood for showing comparative sales. All this material ..... X X X X Extracts X X X X X X X X Extracts X X X X
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