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TMI Blog2011 (8) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture or not at this stage or not.' - Held that:- assessee did not raise this contention before the adjudicating authority and neither was raised in the show-cause notice - it would be in the interest of justice to send back the matter to the original adjudicating authority to consider the issue afresh - E/3054/03 & E/CO-308/03 & E/373 TO 375/11 & E/3060/03 - A/787-792/2011-WZB/C-II(EB) - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001. The contention of the revenue is that during the impugned period i.e. 1.3.2001 to 30.4.2001, the activity of the assessee is an activity of manufacture therefore they are liable to pay excise duty on the said activity. A show cause notice was issued for demanding duty and proposal was also made for levy of penalty. The show cause notice was adjudicated, duty demand along with interest and v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are not liable to pay any duty. He fairly agreed that this issue was not raised before the adjudicating authority. Therefore, he prays that the matter may be sent back for reconsideration in the light of the decision of the Apex Court in the case of S.R. Tissues P. Ltd. (supra). 4. On the other hand, Shri H.B. Negi, DR submitted that the assessee did not raise this contention before the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal issue which can be raised at this stage. Therefore, we find force in the argument of ld. advocate. The adjudicating authority has to consider first whether activity undertaken by the assessee amounts to manufacture or not' which was not considered by the adjudicating authority while adjudicating the case. Therefore, it would be in the interest of justice to send back the matter to the origin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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