2003 (4) TMI 340

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..... (Telebrand for short). The second is classification of the vegetable slicer manufactured by Pinku Industries. 2. Telebrand had placed orders with Pinku Industries for manufacture and supply of sunglasses of the brand name Ambervision and of vegetable slicers which bore on them the words Super Slicer , Pinku Industries cleared the goods without payment of duty by claiming the benefit of the exemption contained in Notification 1/93. The common notice issued to these two firms, and to Hirji Gada, partner of Pinku Industries, and to Hitesh Israni, Managing Director of Telebrand, proposed to deny the exemption on the ground that both the sunglasses and the slicer bore brand names which belonged to Telebrand. While computing the duty, the not .....

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..... goods less packing cost. The contention of Mr. Nankani is that the cost of the packing material supplied by the buyer is not to form part of the value of the goods, as held in Hindustan Thermo Prints v. CC - 1989 (43) E.L.T. 121 (T). 5. There appears to be prima facie merit in this case. We therefore think that the matter should be remanded to the Assistant Commissioner for deciding the value of these goods and the duty payable thereon in both these appeals. 6. Mr. Nankani contends that the question of applicability of exemption under Notification 1/93 to the other product, super slicer, depends upon its classification. If the classification claimed by the assessee of these goods in Heading 39.24 of the tariff is accepted, the goods do .....

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..... his is that the classification determined by the Assistant Commissioner was not one that was proposed in the show cause notice. If the Assistant Commissioner were of the view that the classification proposed in the notice was not correct, the proper course for him to say so and to leave the department to proceed by issue of another notice. The substitution of classification other than that proposed in the notice is not permissible. [(Warner Hindustan Ltd. v. CCE - 1999 (113) E.L.T. 24 (S.C.)]. Therefore, without going into the merits of the classification, we conclude that the classification claimed by the assessee which incidentally has been confirmed by the Commissioner (Appeals), cannot be altered. 10. We accept the contention that he .....

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