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TMI Blog2017 (2) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate in the interest of justice that the matter be reconsidered by the adjudicating authority - appeal allowed by way of remand. - E/3051/01 - A/85215/17/EB - Dated:- 5-1-2017 - Mr. Ramesh Nair, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Prithwiraj Chaudhari, Advocate for Appellant Shri Ajay Kumar Jt. Commissioner (A.R) for respondent Per : Ramesh Nair The issue raised in the show cause notice by the department is that whether the product manufactured by the appellant i.e. Synthetic Rubber Aprons and Cots is classifiable under Chapter 4009.99 attracting nil rate of duty as claimed by the appellant or classifiable under Chapter `Heading 4016.99 attracting duty at the rate of 15%. The adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prons and cots has been decided under chapter heading 8448.00. As per the Hon ble Supreme Court judgment, now since the classification cannot be decided under chapter heading 8448.00 for the reason that this was not proposed in the show cause notice the goods will also not be classifiable either under chapter heading 4009.00 or 4016.99. In such circumstances all the proceedings based on the wrong proposal in show cause notice will not sustain. For this reason itself the demand confirmed by the adjudicating authority and upheld by the Commissioner (Appeals) required to be set aside. 3. Shri Ajay Kumar Ld. Jt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 215) ELT 489 (SC)] wherein this Court held in para 21 that it is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. This view was reiterated in Commissioner of Central Excise v. Gas Authority of India Ltd. [2008 (232) ELT 7 (SC)] in para 7 of the order. In so far as the present appeal is concerned, it is the case of the Revenue in the show cause notices that the goods are classifiable under Chapter Heading 4016.99. Therefore, no new case could have been set up or decided contrary to the show cause notices that the goods fall under Chapter Heading 8448.00 without issuing a fresh show cause notice to the assessee in this regard. In these circumstances, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he classification of goods in question is to be decided under Chapter heading between 4009.99 or 4016.99. Since both the lower authorities have decided the classification under 8448.00, they have not considered the possibility of classifying the goods under 4009.99 or 4016.99. Since classification is based on the facts of nature of goods, it will be appropriate in the interest of justice that the matter be reconsidered by the adjudicating authority keeping in view the observation of Hon ble Supreme Court decision. We therefore set aside the impugned order and remand the matter to the original adjudicating authority for deciding the classification of goods i.e. Apron and Cots either under 4009.99 or 4016.99. The appeals are allowed by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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