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TMI Blog2010 (8) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the rival contentions on record. This is not to suggest that the authorities can travel beyond the scope of show cause notice. Nevertheless when the assessee raises his specific defence in answer to the allegations to the show cause notice, certainly to counter the defence the department would also be entitled for a fair opportunity and it would obviously include opportunity to place materials on record to counter such defence. - Matter remanded back. - E/705-706/2010 - 643-644/2010-EX(PB) - Dated:- 23-8-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri B.L. Narasimhan, Advocate, for the Appellant. Shri B.K. Singh, Jt. CDR, for the Respondent. [Order per : Justice R.M.S. Khandeparka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period from 2002-2003 to 2006-2007 had removed finished goods without payment of duty amounting to Rs. 1,61,75,056/- and hence show cause notice dated 19th April 2008 came to be issued to the appellants. Prior to that another show cause notice dated7th September 2007was sought to be issued in relation to the goods which were sought to be seized under Panchnama dated9th March 2007. The proceedings were contested by the appellants. However, the impugned order came to be passed, as stated above. 4. The learned advocate for the appellants, while candidly admitting that the ground on which he seeks to canvass against the impugned order was not raised in defence before the lower authority, submitted that the appellants had in fact purchased l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) while dealing with the proceedings in relation to the seizure of the cylinders in the course of the investigation in the matter, relying upon the decisions of the Tribunal in the case of Ammonia Supply Company v. CCE, New Delhi (supra) as well as the said Circular issued by the Board has held that the activity undertaken by the appellants fall outside the purview of the said chapter note. Being so, according to the learned advocate, the Commissioner erred in saddling the appellants with the duty liability and subjecting the appellants to pay the penalty. In the facts and circumstances of the case, according to the learned advocate, the impugned order is liable to be set aside and the amount already paid which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants before the Adjudicating Authority. In fact advocate for the appellants had candidly admitted the same while raising the issue. At the same time, issue sought to be raised goes to the root of the matter and certainly needs to be considered in accordance with provisions of law. Whether a particular activity amounts to manufacture within the meaning of the provisions of law applicable to the parties is not a pure question of law. It is a mixed question of fact and law. Being so certainly when such an issue is raised, the party raising such issue as well as the other side will be entitled to place necessary materials in support of the rival contentions. Obviously, therefore, opportunity will have to be given to the parties to place mate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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