S. Kumars Ltd. Vs. Commissioner of Central Excise

1. the issue referred for consideration by the larger bench is as follows :- "whether the processed knitted pile fabric at the hands of the processor would be classifiable under chapter 63 as 'made-up article' i.e. towels or as processed fabric, under chapter 60 of ceta." 2. in this case show cause notice was issued to the appellant on the basis that the goods in question are to be treated as 'made-up articles' as defined in section note 5(f) of section xi of the central excise tariff act, 1985. the above proposal was affirmed by the assistant collector. while doing so, he has taken the view that the assessee's case is based on the interpretation of note 5(f) of section xi and the case relied on by the party dealing with the interpretation based on section note 5(b) of section xi, has no application. the commissioner (appeals) has dismissed the appeal filed by the assessee.but it is not quite clear whether he has applied the provisions contained under chapter note 5(b) or 5(f). there is a contention raised on behalf of the appellant that the commissioner (appeals) cannot sustain the original order on a ground which is not relied upon in the show cause notice. the learned senior counsel appearing on behalf of the revenue submits that it was the assessee himself who has brought in the idea of chapter note 5(b) in its reply to show cause notice.according to us, these are all matters to be considered by the regular bench and only if it comes to the conclusion that the finding of the commissioner (appeals) is based on chapter note 5(f) the issue referred would arise for consideration. if on the other hand/ the bench comes to the conclusion that commissioner (appeals) has relied on chapter note 5(b), then the contention of the assessee that the commissioner has gone beyond the show cause notice will be material and relevant. we, therefore, return the reference to the bench which originally considered the case for passing the appropriate orders.