SUPREME COURT OF INDIA

Before:- S.P. Bharucha, CJI, N. Santosh Hegde and Shivaraj V. Patil, J.

Civil Appeal No. 7139 of 1999. D/d. 10.04.2002.

Godrej Industries Ltd. - Appellant

Versus

Commissioner of Customs, Mumbai - Respondent

For the Appellants :- Joseph Vellapally, Sr. Adv., Ms. Kavita Dahiya, Amit Bhagat, R. Ravindran, Rajan Narain, Advocates.

For the Respondents :- Mukul Rohtagi, A.S.G., Ms. Vibha Dutta Makhija, B. Krishna Prasad, Advocates.

Customs Act, 1962, Section 28 - Classification of goods for the purpose of excise duty - Proposal for by revenue - Principles of natural justice - Non-compliance - Appellate Commissioner's order, upholding classification - Basis to proceed was contrary to finding of Assistant Commissioner and of notice of show cause - Tribunal reverted to conclusions of the Assistant Commissioner in upholding classification by revenue - Held that assessee has had no opportunity to meet the case set up at different times - It is appropriate to remand the matter to Assistant Commissioner - He may, if he so chooses, address to assessee a fresh notice of show cause which sets out, precisely, case of Revenue on the classification, which case shall be adhered to at all times thereafter - Assessee shall have an opportunity to respond to show cause notice and also to lay requisite evidence in support of its case - Issue as to limitation shall not be raised by the assessee.

[Paras 1 and 3]

ORDER

1. We have heard learned counsel. It appears that the Appellate Commissioner's order, upholding the classification proposed by the Revenue, proceeds on a basis that is contrary to the finding of the Assistant Commissioner and, indeed, of the show cause notice. The Tribunal, while appreciating that all that was before it was the finding of the Appellate Commissioner, appears to have reverted to the conclusions of the Assistant Commissioner in upholding the Revenue's classification.

2. There is, therefore, something to be said for the contention on behalf of the assessee that it has had no opportunity to meet the case that has been set up, as aforesaid, at different times.

3. It is, in the circumstances, appropriate that the matter should stand remanded to the Assistant Commissioner and he may, if he so chooses, address to the assessee a fresh show cause notice which sets out, precisely, what is the Revenue's case on the classification, which case shall be adhered to at all times thereafter. If such fresh show cause notice is to be issued, it shall be issued within eight weeks. The assessee shall have an opportunity to respond to the show cause notice and to lay all requisite evidence in support of its case. The issue of limitation shall not be raised by the assessee, having regard to the facts aforestated.

4. The appeal is allowed accordingly.

5. No order as to costs.

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