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TMI Blog2018 (10) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... ds under heading no. 3920.39 of Schedule to Central Excise Tariff Act, 1985 would also have denied them to the benefit of the said exemption. The classification of the said goods under heading no.3916 of the Schedule to the Central Excise Tariff Act, 1985 has attained finality which cannot be re-opened. Consequently, the proposal in show-cause notice to subject goods to the burden of duty, as well as fiscal deterrent, from a revised classification is beyond the scope of proceedings under Central Excise Act, 1944. The proceedings for the proposed classification being without authority of law, the denial of exemption notification is, in consequence, without authority of law - appeal allowed - decided in favor of appellant. - APPEAL No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 664 (T) ] and the goods were held to be classifiable under heading no.3916 of the Schedule to the Central Excise Tariff Act,1944. It is pointed out that this decision of the Tribunal was upheld by the Hon ble Supreme Court in Commissioner of Central Excise v. Caprihans India Ltd. [2008 (226) ELT 18 (SC)]. 3. Learned Authorised Representative contends that the dispute of the assessee arose from denial of exemption notification no.15/94-CE dated 1st March 1994 and no.4/97-CE dated 1st March 1997. According to him, the exemption notification in relation to heading no.3916, claimed by the appellant during the hearing, is limited only to plastic and none other would, therefore, be eligible for the benefit of exemption notification. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of design, therefore we are of the clear view that flock printed fabric with design is not classifiable under 5907. However the product is otherwise appears to be classifiable under 52, 54, 55 depending upon the composition of material used. The appellant also claimed that the flock printing fabrics is not classifiable under 5907, however, same may be classified as 52, 54, 55 in their reply to the show cause notice. Ld. Counsel strongly raised the issue that once the classification proposed by the Revenue is rejected, demand of duty adjudged thereof will not sustain. In this regard, we find that there are various judgments, wherein it was held that even though correct classification was subject matter in the dispute however correct c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout aid of power has to be ascertained. The issue of limitation is also kept open. As per our above observations, we dispose of the appeal by way of remand to the adjudicating authority for passing a fresh order in the above terms. 4. It is not in dispute that the goods in question are the same as that which is agitated before the Tribunal and before the Hon ble Supreme Court in Caprihans India Ltd. It is also not in dispute that if that classification is followed, the consequent availment of exemption will not be available to the appellant. On perusal of the show-cause notice, it is seen that the show-cause notice proposed the classification as 3020.39 of the Schedule to the Central Excise Tariff Act, 1985 instead of 3926.90 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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