COMMISSIONER OF CENTRAL EXCISE Vs. INDODAN INDIA LTD.

JUDGEMENT

(1.) Heard both sides. Revenue filed this appeal against the Order -in -Appeal. In the impugned order the Commissioner (Appeals) held that the "MILKAFE" manufactured by the respondent is classifiable under Heading 2107.91 of Central Excise Tariff. The Commissioner (Appeals) also held that under the present show cause notice no demand can be confirmed in respect of the differential duty, as no show cause notice was issued under Section 11A of Central Excise Act for recovery of the differential duty.

(2.) The contention of the Revenue is that Tribunal in the case of Nestle India Limited v. Commissioner of Central Excise, Ludhiana [2004 (169) E.L.T. 22 (T) classified the Nescafe Pre -mix which is the similar goods under Heading 21 -01 -10 of Central Excise Tariff. The contention of Revenue is also that respondents are liable to pay duty as per the Tariff Heading 2101.10 of Central Excise Tariff" as the goods are liable to pay duty under this heading. Contention of the respondent is that in view of the decision of the Tribunal in the case of Nestle India Ltd. the product in question is rightly classifiable under 2101.10 of Central Excise Tariff. In these facts and circumstances, we set aside the impugned order in respect of the classification and order that the goods in question to be classified under Heading 2101.10 of Central Excise Tariff.

(3.) In respect of demand, we find that in the show cause notice dated 31 -7 -1989 vide which the Revenue wants to re -classify the goods under Heading 2107.91 of the Central Excise Tariff there was no demand under Section 11A of Central Excise Act. The show cause notice was only in respect of the classification of the goods. The Adjudicating authority after classifying the goods in question under the heading as proposed in the show cause notice also confirmed the demand, which was set aside by the Commissioner (Appeals). In the grounds of appeal also there is no challenge to this finding. The only contention of the Revenue is that as they request for setting aside of the impugned order, also covers the portion whereby the Commissioner (Appeals) set aside the demand of duty. We find that in the show cause notice there is no demand under Section 11A. In the show cause notice only proposal was to change the classification. In these circumstances, we find no infirmity in the impugned order regarding the issue that differential duty cannot be confirmed without issuance of a show cause notice under Section 11A. However, Revenue is at liberty to take appropriate action for recovery of the consequential demand, if any, in accordance with the law.