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TMI Blog2024 (6) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... rd pitch, soft pitch and total pitch in terms of the classification held by the Hon ble Supreme Court, viz. tariff subheading 2708.11 - HELD THAT:- It is the settled principle of law that an order cannot be passed travelling beyond the scope of the SCN inasmuch as the SCN lays down the foundation of adjudication proceedings and if the charges are not brought out properly to the knowledge of the assessee, then he should not face charges by any order passed beyond the facts contained in the SCN. Any infirmity in the SCN cannot be bridged by the adjudication or appellate authority. The adjudicating authority has correctly quantified the duty payable in the impugned order passed pursuant to remand directions. Accordingly, there is no infirmity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 2706, charging Nil rate of duty. Order-in- Original no. 18/MP/Collec/1991 dated 19.09.1991 was passed confirming the demand of duty proposed in the SCN dated 31.05.1991, directing the jurisdictional Superintendent to re-calculate the duty amount and imposing a penalty of Rs. 50,00,000/- under Rule 173Q of the Central Excise Rules, 1944. As directed, the jurisdictional Superintendent re-quantified the demand of duty amounting to Rs. 11,10,24,995/-. On appeal, CEGAT vide Order No. A- 179/CAL/2000, remanded the matter for fresh decision. 2.2. As directed by CEGAT, Commissioner of Central Excise, Ranchi passed Order-in-Original no. 85/MP/Commr/2005, confirming the duty demand of Rs. 11,10,24,995/- along with applicable interest under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Act, 1944, as the Respondent was unable to substantiate its eligibility to the benefit of Notification No. 28/89. 2.5. The Commissioner of Central Excise Service Tax, Ranchi has filed the present appeal on the basis of the Order-in-Review dated 19.06.2013, seeking to dispute the impugned order on the basis that it did not confirm/ ensure the payment of excise duty by the Respondent on hard pitch, extra hard pitch, soft pitch and total pitch under tariff sub-heading 2708.11. 3. In their grounds of appeal, the Appellant (Department) submits that the impugned order does not bring on record the duty paid by the Respondent on hard pitch, extra hard pitch, soft pitch and total pitch in terms of the classification held by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Hindustan Ltd. Versus Collector Of Central Excise, Hyderabad [1999 (113) E.L.T. 24 (S.C.)] wherein similar ratio was laid down. 4.2 The appellant submits that it is the settled principle of law that an order cannot be passed travelling beyond the scope of SCN inasmuch as the SCN lays down the foundation of adjudication proceedings and if the charges are not brought out properly to the knowledge of the assessee, then he should not face charges by any order passed beyond the facts contained in the SCN. Any infirmity in the SCN cannot be bridged by the adjudication or appellate authority. 4.3. The Respondent submits that the demand has been correctly set aside by CESTAT, Kolkata and the same has correctly been quantified as payable by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be confirmed under a different classification. Thus, CESTAT, Kolkata had set aside the duty demand holding the classification of goods as different from what was proposed by the revenue. 6.2. We find that this view has been taken by Hon ble Supreme Court in the case of Warner Hindustan Ltd. Versus Collector Of Central Excise, Hyderabad [1999 (113) E.L.T. 24 (S.C.)], wherein it has been held as under: 2. The appellant manufactures what it calls Halls Ice Mint tablets . It classified these tablets as Ayurvedic medicines under Heading 3003.30 of the Central Excise Tariff. It was issued a notice to show cause why these tablets should not be classified under Tariff Heading 3003.19 as patent or proprietary medicines . The Assistant Collector, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise authorities 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 confectionery. This would have given the appellant the opportunity to place on record such material as was available to it to establish the contrary. It is impermissible for the Tribunal to consider a case that is laid for the first time in appeal because the stage for setting out the factual matrix is before the authorities below. 3. In the result, the appeal is allowed. The judgment and order of the Tribunal under appeal is set aside and the appeal filed by the Excise authorities before the Tribunal is dismissed. It shall be open to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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