COMMISSIONER OF CENTRAL EXCISE, CHANDIGARHversusM/S. SHITAL INTERNATIONAL

                       [2010] 12 S.C.R. 824


A
    COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH
                                  V.
                   M/S. SHITAL INTERNATIONAL
               (Civil Appeal Nos.1689-1690 of 2003)
B                       OCTOBER 22, 2010

     [D.K. JAIN AND CHANDRAMAULI KR. PRASAD, JJ.]


         Central Excise Tariff Act, 1975: Chapter 60, note 4 -
C   Knitted pile fabric - Process of carding, knitting and shearing
    undertaken by the assessee in the manufacture of fabric -
    Claim for exemption under Notification no. 0612000 as also
    under Notification nos. 5199, 9196 and 18196 - Held: The
    processes undertaken by assessee did not have the effect of
D   changing the "grey fabric" into another commodity or bring
    about a permanent or lasting change in the fabric so as to
    bring out a new product, amounting to manufacture in terms
    of Chapter Note 4 to Chapter 60 - Fabric in question was
E   "unprocessed knitted fabric" falling under Sr. No. 165 of the
    exemption notification No. 0612000 attracting nil rate of duty
    as also under notification Nos. 5199, 9196 and 18196 - In
    construing the words "or any other process" in Chapter Note
    4 of Chapter 60, the import of the specific expressions has to
F   be kept in mind -- Interpretation of statutes - Doctrine of
    ejusdem generis - Notification nos. 0612000-CE, 5199-CE, 91
    96-CE and 18196-CE.

        Doctrines/Principles: Principle of ejusdem generis -
G Applicability of -- General terms following particular
  expressions take their colour and meaning as that of the
    preceding expressions, applying the principle of ejusdem
    generis rule - Central Excise Tariff Act, 1975.

                                 824
H
 COMMISSIONER OF CENTRAL EXCISE, v. SHITAL 825
              INTERNATIONAL
     Plea: Fresh plea - Permissibility to build a new case -     A
Held: Not permissible - Revenue cannot be allowed to raise
a plea, which was not raised in the show cause notice nor can
it be allowed to take contradictory stands in· relation to the
same assessee - Central Excise Tariff Act, 1975.
                                                                 B
    The question which arose for consideration in the
instant appeals was whether the tribunal was justified in
holding that Since the processes of carding, knitting and
shearing of the fabric, undertaken by the assessee-
respondent did not find mention in Chapter Note 4 of             C
Chapter 60 and were also not covered by the expresion
"any other process" mentioned in the said Chapter Note,
therefore, the knitted pile fabric manufactured by the
assessee was unprocessed and was subject to nil rate
of duty in terms of Notification no.6/ 2000-CE dated 1st
March 2000 as also under Notification Nos.9/96-CE and            D
18/96-CE.

    Dismissing the appeals, the Court

     HELD: 1. It is well settled that general terms following
                                                                 E
particular expressions take their colour and meaning as
that of the preceding expressions, applying the principle
of ejusdem generis rule. In construing the words "or any
other process" in chapter Note 4 of Chapter 60, the
import of the specific expressions has to be kept in mind.
                                                                 F
Therefore, the processes undertaken by the assessee
must take their colour from the process of bleaching,
dyeing, printing, shrink-proofing, tentering, heat-setting,
crease-resistant processing, specifically mentioned in the
Note. It is evident that when a grey fabric is subjected to
any of these processes, a permanent or lasting change            G
is brought about in the fabric. In the instant case, both
the appellate authorities Qelow found that shearing or
back-coating did not brin'g atlout any permanent or
lasting change in the knitted 'pile fabric manufactured by
                                                                 H
        826     SUPREME COURT REPORTS             [2010] 12 S.C.R.


    A the assessee by carding and knitting. The processes of
       shearing or back-coating are not of the same nature as
       other processes mentioned in the said chapter Note and
       therefore, would not fall within the scope and ambit of
        "any other process." A bare perusal of the nature of the
    B processes, explained in the declaration filed by the
        assessee revealed that the processes mentioned therein
        did not have the effect of changing the "grey fabric" into
        another commodity or bring about a permanent or
        lasting change in the fabric so as to bring out a new
    c product, tantamounting to manufacture in terms of
        Chapter Note 4 to Chapter 60 of the Tariff Act. The
'       Tribunal rightly held that the said processes did not
      · amount to "manufacture" in terms of Note 4 of Chapter
        60 of the Tariff Act, and, therefore, the fabric in question
        was "unprocessed knitted fabric" falling under Sr. No.165
    0
        of the exemption notification No. 06/2000 dated 1st March
        2000, attracting nil rate of duty as also under notification
        Nos. 5/99, 9/96 and 18/96. [Paras 14-16, 18] [835-E-H; 837-
        B-F; 838-0]

    E       Mafatlal Fine Spinning And Manufacturing Co. Ltd. v.
        Collector of Central Excise, Bombay (1989) 2 SCC 446;
        Collector of Central Excise, Bombay v. Maharashtra Fur
        Fabrics Ltd. (2002) 7 SCC 444; Commissioner of Central
        Excise, Hyderabad-I v. Charminar Non-Wovens Limited
    F   (2009) 10 SCC 7'70, relied on.

          Maharashtra Fur Fabrics Ltd. v. Collector of Central
      Excise, Bombay 1994 (71) E.L.T. 857 (Tri.-Del.); Versatile
      Enterprises Pvt. Ltd. v. Collector of Central Excise, Meerut
    G 2001 (130) E.L.T. 770 (Tri.-Del.) - referred to.

             2. The revenue cannot be allowed to raise a plea,
        which was not raised in the show cause notice nor can
        it be allowed to take contradictory stands in relation to

    H
 COMMISSIONER OF CENTRAL EXCISE, v. SHITAL               827
              INTERNATIONAL

polish, pressed into service by the revenue before this         A
court, since the foundation of the case was not laid in the
show cause notice, the revenue cannot be permitted to
build up a new case against the assessee. [Para 17]
(837 -F]
                                                                B
    Commissioner of Customs, Mumbai v. Toyo
Engineering India Ltd. (2006) 7 SCC 592; Commissioner of
Central Excise, Nagpur v. Ba/larpur Industries Ltd. (2007) 8
SCC 89; Commissioner of Central Excise, Bhubaneshwar-1
v. Champdany Industries Limited (2009) 9 SCC 466 - relied       C
on.

                     Case Law Reference:
  (1989) 2 sec 446                    relied on     Para 4
  1994 (71) E.L.T. 857 (Tri.-Del.)    referred to   Para 9      D
  2001 (130) E.L.T. 770 (Tri.-Del.)   referred to   Para 9
  (2002) 7 SCC 444                    relied on     Para 14
  (2009) 1o sec 110                   relied on     Para 14     E
  (2006) 1 sec 592                    relied on     Para 17
  (2007) 8 sec 89                     relied on     Para 17
  (2009) 9 sec 466                    relied on     Para 17
                                                                F
    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
1689-1690 of 2003.

    From the Judgment & Order dated 21.8.2008 of the
Central Excise & Gold (Control) Appellate Tribunal, New Delhi
['CEGAT') in Appeal No. E/S/1477/02-D and in E/S/1071/          G
02-D.

                           WITH

C.A. Nos. 4541 of 2005.
                                                                H
    828      SUPREME COURT REPORTS               [2010] 12 S.C.R.


A       B. Bhattacharya, ASG, Binu Tamta, Rashmi Malhotra, B.K.
    Prasad, Anil Katiyar for the Appellant.

       V. Lakshmi Kumaran, Alok Yadav, Pawan Shree Agarwal,
    Meenakshi Arora, Rajesh Kumar for the Respondent.
8         The Judgment of the Court was delivered by

          D.K. JAIN, J. 1. These appeals filed by the Revenue under
  Section 35-L(b) of the Central Excise Act, 1944 (for short "the
  Act") are directed against the order and judgment dated 21st
c August 2002 passed by the Customs, Excise and Gold
  (Control) Appellate Tribunal, (for short "CEGAT"), as it existed
  then, and the order and judgment dated 8th November 2004
  passed by the Custom, Excise and Service Tax Appellate
  Tribunal (for short "CESTAT"), whereby both the CEGAT and
0 CESTAT     rejected the claim of the Revenue and held that the
  goods manufactured by the assessee were "unprocessed
  knitted pile fabrics" classifiable under chapter sub-heading
  6001.12 of the Central Excise Tariff Act, 1985 (for short "the
  Tariff Act"), attracting Nil rate of duty.

E      2. Since the question of law arising for our consideration
  in all the appeals is similar, these are disposed of by this
  common judgment. However, for the purpose of appreciating
  the controversy, a brief reference to the facts in Civil Appeal
  Nos.1689-1690 of 2003, relating to the same assessee, would
F be necessary. These are:

       The assessee company is engaged in the manufacture of
  knitted pile fabrics as well as knitted hosiery fabrics of man-
  made fibres. Admittedly, till 30th September 2000, the
G assessee was declaring the processed goods as dutiable and
  was paying Excise duty on the same.

         However, on 3rd October 2000, the assessee submitted
    a revised declaration claiming that the goods manufactured by
    it were subject to Nil rate of duty in terms of Notification No.
H
 COMMISSIONER OF CENTRAL EXCISE, v. SHITAL 829
         INTERNATIONAL [D.K. JAIN, J.]
06/2000-CE dated 1st March 2000 which came into effect from        A
1st October 2000, forming part of General Exemption No. 66,
prescribing Nil rate of duty on "unprocessed knitted or
crocheted fabrics", as also under Notification Nos. 9/96 and 18/
96.
                                                                   8
    On receipt of the revised declaration, a show cause notice
dated 12th December 2000 was issued to the assessee,
questioning as to why its stand be not rejected and CENVAT
@ 16% ad valorem with AED(ST) @ 8% and AED (TTA) @
15% of the Excise duty on the goods should not be levied.
                                                                   c
    On 29th December 2000, the assessee replied to the
above show cause notice, denying liability on the ground that
the fabric was unprocessed. However, the claim of the
assessee did not find favour with the Deputy Commissioner,
Central Excise, Jalandhar who vide his Order-in-Original No.       D
222/20Nal/01 dated 29th June 2001, held:

     "knitted pile fabrics of sub-heading 6001.12 being
     manufactured by the noticee be treated as processed
     fabrics and chargeable to cenvat @ 8% Adv., AED(ST)           E
     @ 8% Adv. in terms of notification no. 17/2000 dated
     01.03.2000."

    3. Being aggrieved by the said orders, the assessee
preferred an appeal before the Commissioner (Appeals),
Customs & Central Excise, Chandigarh.                              F

                                                          of
      4. The Commissioner (Appeals), upon consideration the
processes undertaken by the assessee came to the conclusion
that these were not covered under Chapter Note 4 to Chapter
60 of the Tariff Act as neither of the processes of carding,       G
knitting and shearing find mention in the said Chapter Note nor
these processes can be covered under "any other process"
mentioned in the said Chapter Note. Placing reliance on the
decisions of the CEGAT as well as on the decision of this Court
in Mafatlal Fine Spinning And Manufacturing Co. Ltd. Vs.
                                                                   H
    830        SUPREME COURT REPORTS                [2010] 12 S.C.R.


A   Collector of Central Excise, Bombay1, the Commissioner
    allowed the appeal of the assessee.

         5. Aggrieved by the said order, the Revenue preferred an
    appeal before the CEGAT. As mentioned previously, the
    CEGAT, vide impugned order, dismissed the appeal. Relying
8
    on the decision of this Court in Mafatlal (supra), the CEGAT
    held that operations of shearing, cropping and back coating of
    the fabric undertaken by the assessee did not amount to
    processing of the fabric, as contemplated in the said Chapter
    Note.
c
       6. It would be expedient to mention that in C.A. No. 4541
  of 2005 relating to the same assessee, the Commissioner, vide
  Order-in-Original No. 69/CE/JAL/03 dated 30th July 2003, who
  had adjudicated on the show cause notice dated 22nd June
D 2001, after examining the processes carried out by the
  respondents, had concluded that the knitted pile fabric
  manufactured by the assessee was unprocessed and therefore
  was exempt under Notifications No. 5/99 and 6/2000. In the
  ultimate analysis the Commissioner observed thus:
E
          "Thus, from the above discussion it is proved that the
          noticee has supplied knitted pile fabrics as well as knitted
          hosiery fabrics to the buyers sold by raising commercial
          invoices and most of the pile fabrics supplied by the
          noticee as knitted fabrics were not having back coating
F         and even if process of back coating was conducted on
          some quantity, the noticee have claimed that the drying was
          done naturally. There is nothing on record to controvert the
          claim that back coated pile fabrics were not dried naturally
          or cannot be dried naturally. Thus, I find that the show
G         cause notice itself does not contain any of the ingredients
          required to substantiate the charge that the processes
          undertaken by the noticee amounts to manufacture in terms
          of Chapter Note 4 to Chapter 60 of Central Excise Tariff
H   1.   (1989) 2 sec 446: 1989 (40) ELT 218 (SC)
 COMMISSIONER OF CENTRAL EXCISE, v. SHITAL                  831
        INTERNATIONAL [D.K. JAIN, J.]
     Act 1985 so as to attract Central Excise Duty.                 A

    In view of the above discussion, I hold that the processes
    undertaken by the noticee in the manufacture of pile fabrics
    sold as knitted fabrics do not amount to manufacture in
    view of Hon'ble Supreme Court judgment in Maharashtra
                                                                    8
    Fur Fabrics Ltd. reported as 2002 (145) ELT 287 (SC) and
    the definition of processes as defined above and therefore,
    the goods supplied by the noticee were not dutiable under
    notification no.5/99-CE dated 28.02.1999 and 6/2000-CE
    dated 01.03.2000 during the relevant period and Central         C
    Excise duty amounting to '1,20,93, 135/- [BED
    '1, 11,97,348 + '8,95,787] is not recoverable under Section
    11A of the Act and interest under Section 11AB of the Act."

Aggrieved by this order, the Revenue preferred an appeal
before the CESTAT, which was rejected vide the impugned             D
order.

     7. Being dissatisfied by the said orders, the Revenue is
before us in these appeals. For the sake of convenience,
hereinafter, both the CEGAT and the CESTAT will be referred
                                                                    E
to as "the Tribunal."

      8. Mr. 8. Bhattacharya, learned Additional Solicitor
General, appearing for the revenue, contended that since in the
instant case, the fabric had been subjected to processing in
the form of shearing and electrifying polishing, these processes    F
amounted to "manufacture" in terms of Chapter Note 4 to
Chapter 60 of the Tariff Act and hence it was not exempted from
Excise duty. Learned counsel argued that the decision of this
Court in Mafatlal (supra) was not applicable to the present case,
as initially the assessee was itself paying duty as and when        G
knitted pile fabric was cleared under Excise invoices, treating
the same as processed fabrics.

    9. Per contra, Mr. V. Lakshmi Kumaran, learned counsel
appearing for the assessee, while supporting the impugned
                                                                    H
    832       SUPREME COURT REPORTS               [2010] 12 S.C.R.


A order of the Tribunal, urged that Chapter Note 4 of Chapter 60
   of the Tariff Act refers only to those processes which result in
   irreversible or lasting change in the character of the fabric and,
   therefore, since the processes of shearing and back-coating
  .did not bring about any change in the grey fabric, the said
B processes do not fall within the ambit of the said Chapter so
   as to attract Excise duty. To buttress the argument that the
   processes carried out by the assessee, namely shearing, back
   coating etc. are integral processes for the manufacture of
   knitted pile fabric and did not amount to manufacture of
c  "processed fabric" as contemplated under Chapter Note 4 and,
   therefore, the assessee was entitled to claim exemption under
   Notification No. 06/2000-CE, learned counsel relied on the
   decisions of the Tribunal in Maharashtra Fur Fabrics Ltd. Vs.
   Collector of Central Excise, Bombay 2 and Versatile
   Enterprises Pvt. Ltd. Vs. Collector of Central Excise, Meerut3.
0
        10. It was strenuously contended that so far as the process
  of shearing was concerned, the issue is no more res integra
  in the light of the decision of this Court in Mafatlal (supra)
  wherein it had been held that shearing process did not have
E the effect of bringing about any change in the grey fabric.
  According to the learned counsel, in view of the concurrent
  findings of fact recorded by both the authorities below, the test
  enunciated in the said decision stands satisfied. It was, thus,
  asserted that there being no permanent change in the character
F of the fabric even when the grey fabric is back-coated or
  sheared, the ratio of the said decision is in all force to the facts
  in hand and, therefore, the appeals deserve to be dismissed.
  In so far as the question of process of electrifying polish was
  concerned, learned counsel submitted that such a plea was
G neither a part of the show cause notice nor was raised by the
  Revenue either before the Commissioner or Tribunal, the
  Revenue cannot be permitted to raise such a plea at this stage.

    2.   (71) E.L.T 857 (TRl.-DEL.)
H   3.   (130) E.L.T770 (TRl.-DEL.)
 COMMISSIONER OF CENTRAL EXCISE, v. SHITAL 833
         INTERNATIONAL [D.K. JAIN, J.]
    11. Before embarking on an examination of the rival               A
submissions, it would be instructive to take note of the tests laid
in Mafatlal (supra), to determine whether a process amounts
to manufacture under the Excise Act. In the said case, this Court
had obseNed thus:-
                                                                      B
     "Any processing that can take a case out of Rule 49-
     A(1 )(b) must be a process which renders cotton fabric
     ceases to be 'grey fabric' as commercially known and
     understood. The que_stion whether 'calendering' and
     'shearing', as actually carried out by the appellant has had     C
     the effect of taking the cotton fabric out of Rule 49-A(1)
     should be decided in the light of this test.

     20. In the present cases, the claim of the appellant before
     the euthorities that the calendering process employed by
     them was such as to give temporary finish by pressing the        D
     fabric is not controverted. No lasting change is brought
     about. There is no finding to the contrary. Likewise the
     claim as to the "shearing" which was only to trim protruding,
     stray fibres from the fabric. If these are the nature of the
     operations, the 'grey' fabric, in the facts of these cases,      E
     does not become new and commercially different
     commodity and cease to be 'grey' cloth. There is thus no
     justification to take it out of Rule 49-A(1 )(b)."

     12. Therefore, the questions arising for consideration are:      F
(i) whether the said processes undertaken by the assessee
amounted to "manufacture" in terms of Note 4 to Chapter 60
and/or (ii) whether the processes in question introduce such a
change in the nature of the fabric that it ceases to be a grey
fabric?
                                                                      G
    13. The relevant portion of Chapter 60 of the Tariff Act
along with the notes reads as follows:

                       "CHAPTER 60
              KNITTED OR CROCHETED FABRICS
                                                                      H
    834          SUPREME COURT REPORTS              [2010] 12 S.C.R


A         Notes:

            1.     This Chapter does not cover:

                   (a) crochet lace of heading No. 58.04;

B                  (b} labels, badges or similar articles, knitted or
                   crocheted, of heading No. 58.07; or

                   (c) knitted or crocheted fabrics, impregnated,
                   coated, covered or laminated of Chapter 59.
                   However, knitted or crocheted pile fabrics,
c                  impregnated, coated, covered or laminated, remain
                   classified in heading No. 60.01

          2. This Chapter also includes fabrics made of metal thread
          and of a kind used in apparel, as furnishing fabrics or for
D         similar purposes.

          3. Throughout this Schedule, any reference to "knitted"
          goods includes a reference to stitch-bonded goods in
          which the chain stitches are formed of textile yarn.
E         4. In relation to products referred to in this Chapter,
          bleaching, mercerising, dyeing, printing, water-proofing,
          shrink-proofing, tentering, heat-setting, crease-resistant,
          organdie processing or any other process or any one or
          more of these processes shall amount to 'manufacture'.
F
      Head- Sub-             Description of goods   Rate of duty
      ing   heading
      No.   No.                                     Basic Additional

G     (1)          (2)            (3)               (4)       (5)

    60.01        Pile fabrics, including 'Long pile' fabrics and
                 terry fabrics, knitted or crocheted

      - 'Long pile· fabrics:
H
     COMMISSIONER OF CENTRAL EXCISE, v. SHITAL               835
            INTERNATIONAL [D.K. JAIN, J.]
              6001.11 - Of man-made fibres           16%     8%      A
              6001.12 - Of other textile materials   16%     8%
              6001.19 - Of other textile materials   16%

                         - Looped pile fabrics
                                                                     B
              6001.21 - Of cotton                    16%     8%
              6001.22 - Of man-made fibres           16%     8%
              6001.29 - Of other textile materials   16%

                         - Other:                                    c
              6001.91 - Of cotton                    16%     8%
              6001.92 - Of man-made fibres           16% 8%
              6001.99 - Of other textile materials   16%"
      14. There is no dispute that knitted pile fabrics are to be    D
classified under heading No. 60.01 of the Tariff Act. The issue
is whether the processes of shearing and back-coating which
do not figure in Chapter Note 4 to Chapter 60 of the Tariff Act,
would fall within the ambit of "any other process" referred to in
the said note. It is well settled that general terms following       E
particular expressions take their colour and meaning as that of
the preceding expressions, applying the principle of ejusdem
generis rule, therefore, in construing the words "or any other
process", the import of the specific expressions will have to be
kept in mind. (See: Collector of Central Excise, Bombay Vs.          F
Maharashtra Fur Fabrics Ltd4 .). Therefore, the processes, with
which we are concerned in the present appeals must take their
colour from the process of bleaching, dyeing, printing, shrink-
proofing, tentering, heat-setting, crease-resistant processing,
specifically mentioned in the note. It is evident that when ~ grey   G
fabric is subjected to any of these processes, a permanent or
lasting change is brought about in the fabric. Whereas, in the
present case, both the appellate authorities below have found

4.    (2002) 7 sec 444
                                                                     H
    836       SUPREME COURT REPORTS                (2010] 12 S.C.R.

f- that neither shearing nor back-coating brings about any
    permanent or lasting change in the knitted pile fabric
    manufactured by the assessee by carding and knitting. In this
    regard, it would be useful to advert to the observations made
    by this Court in Commissioner of Central Excise, Hyderabad-
8   I Vs. Charminar Non-Wovens Limited5 , wherein it was held
    that:-

          "Such conc;urrent findings by the lower authorities are
          interfered with by this Court in exercise of its jurisdiction
          under Section 35-L of the Central Excises and Salt Act,
c         1944 only when such findings are patently perverse or are
          based on manifest misreading of any legal provision. Here
          none of these situations is present. Reference in this
          connection may be made to the decision of Sidharath
          Pharmaceuticals v. CCE. In that judgment, the learned
D         Judges of this Court held that with the concurrent finding
          of facts reached by the lower authorities in classification
          on the basis of evidence and on analysis of relevant legal
          provision interference is not called for by this Court in
          exercise of its power under Section 35-L of the Central
E         Excise Act, 1944."

        15. In the declaration submitted by the assessee, the said
    processes are described as follows:-

          "a. Carding: Firstly, the fibre/synthetic waste/mixed fibre
F         and waste is fed into the carding machine which opens the
          compressed material and after loosening the same, sliver
          is made.

          b. Knitting: Thereafter, the carded sliver plus yarn is
G         inserted into the loops of the circular knitting machines and
          the fabric is made.

          c. Shearing: The next process is on the back-coating
          machine where the cloth is sheared, polished and the pile
H   5.    (2009) 1o sec   no
    COMMISSIONER OF CENTRAL EXCISE, v. SHITAL                   837
           INTERNATIONAL [D.K. JAIN, J.]

      is kept to the required level.                                    A

      d. Back-coating: The final process is on the back coating
      machine where the back coating is done and fur is ready.
      Then, it is measured on semi-automatic measuring table
      and the rolls are made which are ready for show in the            B
      Excise Bond room and for sale."

In this background, we find it difficult to hold that the processes
of shearing or back-coating are of the same nature as other
processes mentioned in the said chapter Note and therefore,
would fall within the scope and ambit of "any other process."           c
      16. Adverting to the second issue, noted supra, the
Revenue has not controverted the afore-stated factual position,
nor has it adduced any evidence to suggest that the processes
mentioned in the afore-extracted declaration induce some                D
permanent change in the "grey fabric". A bare perusal of the
nature of the processes, explained in the said declaration
reveals that the processes mentioned therein do not have the
effect of changing the "grey fabric" into another commodity or
bring about a permanent or lasting change in the fabric so as
                                                                        E
to bring out a new product, tantamounting to manufacture in
terms of Chapter Note 4 to Chapter 60 of the Tariff Act. Support
is also lent to this view by the decision of this Court in Mafatlal's
case (supra).

     17. As regards the process of electrifying polish, now             F
pressed into service by the revenue, it is trite law that unless
the foundation of the case is laid in the show cause notice, the
revenue cannot be permitted to build up a new case against
the assessee. (See: Commissioner of Customs, Mumbai Vs.
Toyo Engineering India Ltd. 8 ; Commissioner of Central                 G
Excise, Nagpur Vs. Ba/larpur Industries Ltd. and

6     (2009) 15 sec 561
7    (2006J 7 sec 592
a    (2007) a sec 89                                                    H
    838        SUPREME COURT REPORTS                (2010] 12 S.C.R.


A Commissioner of Central Excise, Bhubaneshwar-1 Vs.
  Champdany Industries Limited9 ). Admittedly, in the instant
  case, no such objection was raised by the adjudicating authority
  in the show cause notice dated 22nd June 2001 relating to the
  assessment yHar 1988-89 to 2000-01. However, in the show
8 cause notice dated 12th December 2000, the process of
  electrifying polish finds a brief mention. Therefore, in light of the
  settled legal position, the plea of the learned counsel for the
  revenue in that behalf cannot be entertained as the revenue
  cannot be allowed to raise a fresh plea, which has not been
C raised in the Show Cause notice nor can it be allowed to take
  contradictory stands in relation to the same assessee.

        18. In light of the foregoing discussion, we are in
  agreement with the Tribunal that the said processes do not
  amount to "manufacture" in terms of Note 4 of Chapter 60 of
D the Tariff Act, and hence the fabric in question is "unprocessed
  knitted fabric" falling under Sr. No.165 of the exemption
  notification No. 06/2000 dated 1st March 2000, ~ttracting Nil
  rate of duty as also under notification Nos. 5/99, 9/96 and 18/
  96. These appeals are bereft of any merit and are, therefore,
E dismissed accordingly, leaving the parties to bear their own
  costs.

    O.G.                                        Appeals dismissed.




    g     (2009 g sec 466