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TMI Blog2016 (3) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... issue that the invoices bear two addresses and therefore it is not established that the capital goods were received in the factory of the appellant, find that this ground was taken by Ld. Commissioner(Appeals) while passing the impugned order, this is a matter of fact and it is necessary on part of the Revenue to investigate that only on the basis that two addresses mentioned on the invoices whether the Capital goods received in the factory and used in the factory, however no such exercise was carried out by the Revenue and issue was not raised in the show cause notice, even adjudicating authority also was not given any finding on this issue. Thus agree with the Ld. Counsel that this fresh issue raised first time in the impugned order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal by the appellant the Commissioner(Appeals) rejected the appeal not only on the ground that items are not capital goods but also on the ground that invoices of the Wires and Cables indicate the address of the applicant as well as applicants site and therefore it was contended that Wires and Cables were not received in the appellants factory. Aggrieved by the impugned order, the appellant is before me. 3. Shri. Vinay Sejpal, Ld. Counsel for the appellant submits that the issue whether Wires and Cables and refractory are capital goods or otherwise, he submits that Wires and Cables falling under Chapter 85 and refractory falling under Chapter 69, both are explicitly covered under the definition of Capital goods prevailing at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise, I reproduce the definition of Capital goods : Rule 2. Definitions . - In these rules, unless the context otherwise requires,- (a) capital goods means:- (A) the following goods, namely:- (i)all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading No. 68.05 grinding wheels and the like, and parts thereof falling under heading 6804 of the First Schedule to the Excise Tariff Act; (ii)pollution control equipment; (iii)components, spares and accessories of the goods specified at (i) and (ii); (iv)moulds and dies, jigs and fixtures; (v)refractories and refractory materials; (vi)tubes and pipes and fittings thereof; and (vii)storage tank, used- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue. I agree with the Ld. Counsel that this fresh issue raised first time in the impugned order and the same was not raised in the show cause notice. The appellant was not put to notice on this issue therefore it is not open for the Revenue to decide the matter on a issue which is not embodied in the show cause notice. The judgment of Honble Supreme Court in this regard support the case of the appellant, in case of Reckitt Colman of India Ltd(supra), Honble Supreme Court held as under:- 3. It will be remembered that the case of the Revenue, which the appellant had been required to meet at every stage from the show cause notice onwards, was that the said product was a preparation based on starch. Having come to the conclusion that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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