Full Judgment
2. The respondents imported "hologram labels". The importers claimed classification under heading 4910 of the Central Excise Tariff Act.
Show cause notice was issued claiming classification under sub-heading 3919.90. The Assistant Commissioner examined the process of manufacture as also the structure of the tariff and ordered classification of the hologram labels under sub-heading 4911.99. An application was called to be filed by the jurisdictional Commissioner under the provisions of Section 129D(4) of the Customs Act, 1962 claiming the classification to be under sub-heading 4911.91 and not under 4911.99. The Commissioner (Appeals) on analysis of the material before him opined in favour of sub-heading 4911.99 and rejected the department's appeal. The present appeal is from the Revenue challenging this order and claiming that the appropriate classification was under subheading 4911.99.
3. Shri J.C. Patel submits that the show cause notice had sought to classify the products under heading 3919.90. The subsequent proceeding would be bound to be within the framework of the show cause notice. The application caused by the Commissioner to be made before the Commissioner (Appeals) itself was wrong inasmuch as it claimed classification different from what was alleged in the show cause notice. On the same ground he submits that the present appeal is also bad in law. In support of his claim he cites the Tribunal order No.10/99-D dated 22-12-1998 in the case of Cadila Laboratories Ltd. v CCE.In this case, on examination of the proceedings which were identical in the sense that a different classification was suggested, the Tribunal held that the Commissioner in initiating the proceedings under Section 35E(2) had gone beyond the record of proceedings. This provision being akin to the provision of Section 129D(2) of the Customs Act, this judgment applies. In the result the Revenue appeal is dismissed.