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TMI Blog2023 (5) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities making it clear that it was open to the Excise Authorities to issue a fresh show cause notice to the appellant on the basis that the tablets were classifiable under Heading 17.04 as items of confectionary. The claim of the Revenue that the adjudicating authority can classify the goods in a Customs Tariff Heading different from the one proposed in show cause notice, cannot be accepted - appeal of Revenue dismissed. - CUSTOMS APPEAL NO. 10146 OF 2016-DB - Final Order No. A/ 10506 /2023 - Dated:- 17-3-2023 - HON BLE MR. RAJU, MEMBER (TECHNICAL) And HON BLE MR. SOMESH ARORA (JUDICIAL) Shri G. Kirupanandan, Assistant Commissioner (Authorized Representative) appeared for the Appellant Shri Saurabh Dixit, Advocate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) who allowed their appeal on the ground that the original adjudicating authority has travelled beyond the show cause notice and on that ground the said order was set aside. Aggrieved by the said order, Revenue is in appeal before Tribunal. 2. Learned Authorized Representative relies on the ground of appeal. He also relied on the decision of Tribunal in case of Tata Iron Steel Company Limited reported at 1987 (30) ELT 771. The said decision holds that even if the tariff item is not correctly mentioned in the show cause notice, demand can still be confirmed under different tariff heading. 3. Learned counsel for the respondent argued that the issue is squarely covered by the decision of Hon ble Apex Court in case of Warner Hindust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Tribunal noted that the Assistant Collector had classified the tablets under Heading 3003.19, that is, as patent or proprietary medicines. This was clear indication that the stand of the Excise authorities prior to the stage of the appeal to the Tribunal was that the tablets were patent or proprietary medicines classifiable under Heading 3003.19. The Tribunal also noted that both sides have not adduced any detailed arguments as to why these tablets can be considered as confectionery item or otherwise although a plea is there from the Collector in the grounds of appeal that the goods are assessable under Tariff 17.04 . In our opinion, the Tribunal was quite wrong in these circumstances in allowing the appeal of the Excise authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven the goods is classified under the chapter heading claimed by the assessee is correct or not, the case of the department will fail. This gets support from the following judgments: PEPSICO HOLDINGS PVT.LTD.- 2019(25) GSTL 271 (Tri.-Mum) 8. In the light of the above, we cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Revenue is found to be inappropriate, that claimed, while clearing the goods, will sustain even if it may appear to be inappropriate. We cannot also, in our appellate capacity, direct or accord the latitude for invoking Section 11A of Central Excise Act, 1944 by obliteration of the proceedings leading to the impugned order. The mandate of the law pertainin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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