Show cause notice grounds cannot be shifted in review; prima facie case justified waiver of pre-deposit.

A stay application on pre-deposit of duty was allowed because the departmental review relied on a ground not stated in the show cause notice. The notice proceeded on an allegation tied to the applicant's monogram and the name "Comteck", but the review before the Commissioner (Appeals) shifted to the appearance of "Miniflex" in literature and on a sample. That departure from the original notice was treated as impermissible at the stay stage, and the applicant was found to have made out a prima facie case for dispensing with pre-deposit.

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Issues: Whether, in a stay application concerning pre-deposit of duty, a case was made out for dispensing with pre-deposit where the department's review proceeded on a ground different from the ground stated in the show cause notice.

Analysis: The proposed classification under the tariff was founded in the show cause notice on the allegation that the product bore the applicant's special symbol or monogram in the shape of an octagon with the name "Comteck". The grounds subsequently taken in review before the Commissioner (Appeals) relied on an altogether different basis, namely the appearance of the trade name "Miniflex" in the literature and on the sample. Such a shift in foundation was held impermissible at the stay stage, and it was considered that a review could not proceed on a wholly new ground not contained in the notice.

Conclusion: A prima facie case was made out for dispensing with the pre-deposit, and stay was granted in favour of the applicant.

Final Conclusion: The duty pre-deposit was stayed because the impugned departmental case rested on a new ground not supported by the original show cause notice.

Ratio Decidendi: A demand or review cannot be sustained on a ground wholly different from that stated in the show cause notice, and such a departure can justify dispensation of pre-deposit where a prima facie case is shown.

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