9911796707
TMI Blog1993 (9) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... I. 2. By issuance of Show Cause Notice dated 24-2-1987, it was alleged that the appellants had wrongly availed of the Modvat Credit in relation to the duty paid on gummed/adhesive tapes in rolls, as they could not be considered as inputs or goods used in relation to manufacture of final product namely Aluminium Collapsible Tubes, adjudication proceedings were conducted, but vide order-in-original dated 12-9-1987, of the Assistant Collector, the demand was withdrawn, on the ground that the assessee had declared the said item as input in their declaration vide Rule 57G of the Rules, and had correctly availed of the Modvat Credit during the period in question. In exercise of the powers under Section 35E of the CESA, 1944, the Collector, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has pleaded that, the order of the Collector (Appeals) is not sustainable, as going beyond the periphery of the Show Cause Notice. Mr. Mondal, the Ld. SDK, has, however, submitted that it is open to the department to order review vide Sec. 35E of the Act, on the point raised, as the Show Cause Notice principally alleges non-availment of Modvat Credit. In his submission, if, however, the assessee feels that no proper opportunity is given to explain on the ground raised in the appeal, the matter could stand remanded for de novo consideration, by giving opportunity to the assessee to have their say thereon. 6. It is clear from the averments in the Show Cause Notice dated 24-4-1987, that the only ground raised for the disallowance of Modva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts arising out of the decision or order . This clearly indicates that it is not open to the Collector to traverse beyond the scope or periphery of the Show Cause Notice, and order filing of an appeal, pleading a ground which is not specified as a ground for raising demand in the Show Cause Notice. 10. It is true that certain issues of law could be raised even at the appellate stage, even though the same were not raised at the adjudication stage. Such issues however should be pure questions of law, and which could be determined on the set of facts already available on record. Even if the issue is one of law, but if it calls for adducing additional evidence, and requires examination of factual position, other than the one examined at the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 35E(2) to order filing of the appeal on the ground not raised in the Show Cause Notice, and the finding given by the Collector (Appeals) thereon, overlooking the fact that the same was not the ground raised in the Show Cause Notice, and also was not the issue of law which could be determined on the set of facts brought on record, in the adjudication proceedings, could not be sustained and has to be set aside. 15. The appeal is, therefore, allowed. The order of the Collector (Appeals) is set aside, with consequential relief. It is however observed that it would be open for the Department to issue fresh Show Cause Notice, if the same is otherwise permissible under the law, on the issue sought to be raised before the Collector (App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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