Commissioner of C. Ex. and Cus. Vs. L.D. Textile Ltd.

1. shri willingdon christian, learned counsel appearing for the respondents raises preliminary objection on the ground that in the show cause notice, the appellant had held that the goods were classifiable under chapter heading 55.04 whereas in the appeal now preferred, the product is proposed to be classifiable under chapter heading 55.05. he submits that the department has by this appeal, made out a completely new case for classification of the product. he submits that at the appellate stage, a completely new case cannot be made. he, therefore, prays that the appeal may be dismissed.2. shri r.s. sangia, learned dr submits that the issue was non-excisability of the product contested before the tribunal as the authorities below had held that the product was non-excisable. he submits that this issue is the relevant issue and that the classification under a specific tariff item only is a subsidiary issue which follows the contention that the product is excisable.3. we have heard the rival submissions. we note that in the show cause notice, the department had proposed that the product was classifiable under chapter heading 55.04. we find from the appeal papers now presented before us that the department is claiming that the product should be classifiabale under chapter heading 55.05. we find that the assessee was not provided any opportunity to contest the fresh tariff item now proposed to be the tariff item for classification of the product. with the introduction of this proposed classification under chapter heading 55.05, we find that the appellant had tried to make an entirely new case. an entirely new case cannot be made out at the appellate stage without issue of a show cause notice and following the remedies provided under the statute. in the circumstances, the appeal is not maintainable and the same is dismissed.