ORDER
G.A. Brahma Deva, Member (J)
1. This is an appeal filed by Revenue.
2. It was brought to our notice that a Show Cause Notice dated 3-4-1991 has been issued denying the benefits in terms of Notification No. 71/68-C.E., dated 1-4-1998 and payment of duty at 15% Adv. for the period from September 1990 to February 1991 by allowing benefits under Notification No. 377/86-CE., dated 29-7-1986. It was submitted by both sides that the Department has come in appeal on the ground that the Respondents were not entitled exemption under Notification No. 377/86-C.E. It was also submitted that the issue with reference to the Notification No. 71/68 has already been considered by the Tribunal and the Tribunal had remanded the matter to the concerned adjudicating authority to examine the issue afresh in accordance with law. Accordingly the matter was adjudicated by the adjudicating authority and decided in favour of the assessee by allowing the benefits of Notification No. 71/68.
3. Shri G. Shivadass, learned Advocate appearing for the Respondents submitted that the issue with reference to Notification No. 377/86 does not arise since there was no mention of denying the benefit of that notification in the show cause notice. He also said that the present appeal is beyond show cause notice.
4. We have carefully considered the matter. We find that there is, sufficient, force in the arguments advanced on behalf of the assessee. At the first instance, the show cause notice has been issued denying the benefit in terms of notification No. 71/68 and by allowing the benefit with reference to Notification No. 377/86. Aggrieved by the said order the party has filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) set aside that order. Not being satisfied with that order, the Department has filed an appeal before the Tribunal and the Tribunal remanded the matter to the Assistant Commissioner for a fresh decision. In pursuance of the order of the Tribunal, the Assistant Commissioner had decided holding that the Respondents were not eligible for the benefit of Notification No. 71/68. No appeal has been filed against this order. The Department has filed an appeal on the ground that the Respondents were not entitled benefit in terms of Notification No. 377/86. The Commissioner of Central Excise (Appeals) dismissed the appeal filed by the Department rightly so. Since the dispute in respect of Notification No. 377/86 was neither the subject matter of the dispute nor it was mentioned in the notice for denying the benefit therein, any order without show cause notice is bad in law as rightly pointed out by the Respondents. Thus this appeal filed by the Department is hereby dismissed.