ORDER
S.L. Peeran, Member (J)
1. This is a revenue appeal against the Order-in-Appeal No. 227/91, dated 17-9-1991 upholding the declaration filed by the appellants under classification list No. 2/90-91 effective from 10-10-1990 classifying the product called “Subscriber meter monitoring equipment system” – SMME and “Strowgear Monitoring Equipment” – SME under Chapter Heading 8543.00 against department’s claim for classification under 8517.00 of CETA.
2. The revenue has differed with both the tariff headings as adjudicated by both the authorities in this appeal and have raised a different heading for classification under Chapter Heading 90.31 on the ground that both the authorities have committed an error in the classification and the correct classification would be only under Heading 90.31 and not as declared by the appellants or as adjudicated by the department in the show cause notice.
3. The revenue in this appeal rely on the HSN Notes for suggesting a fresh classification under sub-heading 90.31 of CETA, 1985.
4. We have heard both sides in the matter.
5. The learned D.R. submits that although this fresh sub-heading 90.31 of CETA was not the heading agitated by the parry or by the revenue. Yet, on fresh consideration by the department, the correct heading would be only under 90.31 and therefore, adopting of wrong heading by the department as well as by the Assistant Commissioner is required to be revised on the fresh ground now brought forth in this revenue appeal.
6. The learned Consultant has taken a basic objection that the department cannot suggest a new heading in the revenue appeal for the first time as the department either to accept the classification as declared by the party or seek a fresh classification by issue of show cause notice. The department cannot raise fresh grounds before the Tribunal which was not the terms of show cause notice. In this regard, he relies on this very Bench decision in the case of C.C.E. v. Senapathy Symons Insulations (P) Ltd. as reported in 1999 (108) E.L.T 666 (T). It is his contention that this view of the Tribunal on this aspect of the matter is well settled one and the same has been confirmed by several judgments of the Hon’ble Apex Court as in the case of Gujarat State Fertilisers Co. v. C.C.E. as reported in 1997 (91) E.L.T 3 (S.C.).
7. On a careful consideration of the submissions, we notice that the objection raised by the learned Advocate on this point is required to be upheld, as it is a well settled law in terms of the judgment referred to that a fresh sub-heading or heading cannot be agitated for the first time before the Tribunal or an appellate authority and it cannot be beyond the headings proposed in the show cause notice or the one approved in terms of the classification list. Therefore, on this point alone, the appeal is required to be rejected. Therefore, respectfully following the ratio of the judgment cited above, this appeal is rejected on this point. However, it is left to the department to raise a fresh show cause notice making grounds for re-classification.