2005 (1) TMI 167

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..... proved by the Assistant Commissioner. Against this approval the Revenue went in appeal to the Commissioner (A) contending that the goods are correctly classifiable under 4016.99. The Commissioner rejected the Revenue's appeal who thereupon preferred an appeal to the Tribunal. The latter, however classified the goods under a third Heading 8448.00. In the meanwhile the Department issued 7 show cause notices seeking to classify the goods under Chapter Heading 4016.99 and demanding consequential duty. After the Tribunal decided the case in the above manner the Assistant Commissioner confirmed the demands classifying the goods under Chapter Heading 8448.00. It may be stated that the present appellants did not appeal against the order of the Trib .....

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..... hile CET not to be adjusted against duty leviable under Item 15A(2) the department not having issued a valid demand for basic excise duty leviable under 15(2) as recovery is permitted only after following the procedure laid down in Section 11A of Central Excise Act; that the Tribunal held in the case of C.C.E., (Bombay) v. Neoluxe India Ltd. [2001 (128) E.L.T. 298 (Tri. - Del.)] held that recovery of duty under a different heading from that proposed in the show cause notice is impermissible; that the appellant was never put to notice on the new classification which affected his fundamental right to put up a defence and that a show cause notice is a necessary pre-requisite before demanding duty not levied, short levied etc. and since such a .....

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..... e confirming the demand classifying the goods under a heading approved by the Tribunal, should be rejected. 5. We have considered the rival submissions and the case law cited by both sides. There is no gainsaying the fact that the appellant was aware of the reason as to why the goods are classifiable under Chapter Heading 8448.00. They accepted the Tribunals' order and started paying duty applicable to the goods at the rate applicable under Chapter Heading 8448. It is only when the differential duty is demanded as per the rate applicable to the goods falling under 8448 the appellants contend that a fresh show cause notice should be issued before such a demand is made. This is not acceptable at least for two reasons. Firstly the seven show .....

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