Show cause notice evidence limits on excise demand: undisclosed material cannot sustain duty liability without rebuttal opportunity.

An excise duty demand could not be sustained where the Revenue relied on material not disclosed in the show cause notice, because the assessee had no opportunity to rebut that evidence. The goods had been inspected before 28-2-1994, and the later inspection note did not by itself establish clandestine clearance. The Revenue's reliance on Ambala check barrier material was also ineffective since it was absent from the notice. In the absence of any other supporting evidence, the demand was held unsustainable and the confirming order was set aside in favour of the assessee.

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Issues: Whether the excise duty demand could be sustained on the basis that the goods were cleared after 28-2-1994 and on evidence not forming part of the show cause notice.

Analysis: The goods were found to have been inspected before 28-2-1994 and the inspection note was issued subsequently. The Revenue also relied on evidence from the Ambala check barrier showing passage after 28-2-1994, but that material was not included in the show cause notice and the assessee had no opportunity to rebut it. In the absence of any other evidence, the demand could not be sustained, and the earlier Tribunal view on similar facts supported that conclusion.

Conclusion: The demand was not sustainable and the order confirming it was set aside in favour of the assessee.

Ratio Decidendi: A demand cannot be upheld on the basis of material not set out in the show cause notice, especially where the assessee is denied an opportunity to meet that evidence.

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