CCE Vs. DABUR INDIA LTD.

JUDGEMENT

(1.) These are two appeals, filed by the Revenue against the Order -in -Appeal No. 227 -228/CE/GZB/2003 dated 26.5.2003 passed by the Commissioner (Appeals).

(2.) Shri P.M. Rao, learned DR, submitted that M/s. Dabur India Ltd., respondents, procure keora water in crude form from vendors, who extract the same without the aid of power and enjoy exception from payment of duty under Notification No. 167/86 -CE dated 1.3.86; that the respondents undertake process of the crude keora water relating to purification to make it fit as per the required standards; that the show cause notices were issued for classifying the purified keora water under Heading 33.01 of the Schedule to the Central Excise Tariff for demanding duty; that the Deputy Commissioner classified the impugned products under Heading 33.03 and confirmed the demand of duty; that on appeal, filed by the respondents, the Commissioner (Appeals), under the impugned order, has set aside the order -in -original on the ground that in the show cause notices, the impugned product was proposed to be classified under Heading 33.01, whereas the adjudicating authority had classified the same under heading 33.03, which is beyond the scope of show cause notices, relying upon the decision in the case of Hindustan Polymers Co. Ltd. v. CCE, Guntur, 1999 (106) ELT 12 (SC) and decision in the case of Lauls Ltd. v. CCE, New Delhi, 2000 (126) ELT 623 (T). The learned DR, further, submitted that the Commissioner (Appeals), while deciding other appeals filed by the respondents, has upheld in Order -in -Appeal No. 256 -58/2003 dated 10.6.03 that keora water falls under Heading 33.03; that, accordingly, the adjudicating authority correctly decided the classification of the impugned products under Heading 33.03.

(3.) Opposing the appeal, Sh. B.L. Narsimahan, learned Advocate, submitted that the adjudicating authority, by classifying the product under Heading 33.03, has travelled beyond the scope of the show cause notices as in the show cause notices, the product was mentioned to be classified under Heading 33.01; that it has been held by the Supreme Court in the case of Warner Hindustan Ltd. v. CCE, Hyderabad, 1999(66) ECC 592 (SC : 1999 (113) ELT 24 (SO that the Tribunal cannot classify the product under a new Heading and the correct course for the Tribunal to have followed, was to have dismissed the appeal of the Excise authorities making it clear that it was open to the Excise authorities to issue a fresh show cause notice to the appellants on the basis that the tablets were classifiable under Heading 17.04 as items of confectionery. He also relied upon the decision of the Tribunal in the case of Lauls Ltd. (supra).