2024 (7) TMI 813

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....einafter referred to as "ARA") dated 02.09.2015 relating to classification of "Autoclaved Aerated Concrete Block" (hereinafter referred to as "AAC Block") sold by the appellant in W.P.No.30528 of 2015. This Court was pleased to set aside the order of the ARA on the premise that the appellant was not provided with the opportunity of personal hearing and remitted the matter to the ARA for passing order as afresh. Pursuant thereto, the ARA passed a fresh order on 26.04.2019. This was challenged again in W.P.No.31103 of 2019. The primary ground of challenge was that with the repeal of the TNVAT Act, the constitution and form of ARA stands altered and thus the order of the ARA would not survive. The learned Judge disposed of the writ petition vide order dated 09.09.2022 acceding to the submission of the appellant and concluded that both the applications and the impugned order of ARA may no longer survive. The learned Judge also directed completion of all pending assessments for the period 2012-13 to 2017-18 within a period of 16 weeks. Pursuant to the above orders of this Court, the respondent assessing officer issued fresh notices on 17.04.2023 and completed the assessment vide order d....

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..... The issue that arose for consideration in the assessment was whether the "Autoclaved Aerated Concrete block" known as (AAC Blocks) would fall under Entry 22 of part B of First Schedule to the TNVAT Act as claimed by the appellant or under Entry 15 of Part C of the First Schedule of the TNVAT as proposed by the revenue. The relevant entries read as under: "Part B Entry 22 (a) Bricks of all kinds including fly ash bricks, refractory bricks asphaltic roofing, earthen tiles and refractory monolithic. (b) Brickbats, brick ballast, hollow block bricks, cement hollow blocks. (c) Country bricks and Country tiles made of baked clay and (other machine made or hand made other than those specified in the Fourth Schedule) and stoneware. (d) Crog of (a) to (c). Part C Entry 15 Cement products of all kinds including Cement tirle, pavement blocks excluding cement jolleys, doors, window frames made of RCC pipes (Code No.316)." 10. The appellant had submitted its reply vide letter received on 15.05.2023 in support of its contention that AAC Blocks sold would fall under Entry 22 of Part B of the First Schedule to the TNVAT Act in response to the notice dated 17.04.2023 proposing to l....

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....try found for the Products manufactured by the dealers. .... In the result of above discussion, it is concluded that AAC Blocks are not Cement Concrete Products but physically they are different form both FLY ASH BLOCKS / Bricks and Cement Concrete Products and hence they are classified with Commodity Code 301 - ANY OTHER GOOD, NOT SPECIFIED IN ANY OF THE SCHEDULE. .... Defect No.1:In the result of above detailed discussion, it is concluded that "Autoclaved Aerated Concrete Blocks" shortly known as "AAC Blocks", falling under Entry No.1 of Part-C of First Schedule to TNVAT Act, 2006 (Commodity Code: 301) are not Cement Concrete Products but physically they are different form both FLY ASH BLOCKS / Bricks and Cement Concrete Products and hence under the Commodity Code 301 ANY OTHER GOOD, NOT SPECIFIED IN ANY OF THE SCHEDULE, which is liable to tax @ 14.5% at every point of sale. (emphasis supplied) 14.1. A reading of the above portion of the impugned orders of assessment would show that the assessment orders insofar as they classify the AAC Blocks sold by the appellant under the residuary entry viz, Entry 69 of Part C of First Schedule to the TNVAT Act marks a departure fro....

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.... of electrifying polish, now 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 Commr. of Customs v.Toyo Engg. India Ltd. [(2006) 7 SCC 592], CCE v.Ballarpur Industries Ltd.[(2007) 8 SCC 89] and CCE v. Champdany Industries Ltd. [(2009) 9 SCC 466] ) Admittedly, in the instant case, no such objection was raised by the adjudicating authority in the show-cause notice dated 22-6-2001 relating to Assessment Years 1988-1989 to 2000-2001. However, in the show-cause notice dated 12-12-2000, the process of electrifying polish finds a brief mention. Therefore, in the 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 raised in the show cause notice nor can it be allowed to take contradictory stands in relation to the same assessee." (emphasis supplied) iv) CCE v. Ballarpur Industries Ltd., (2007) 8 SCC 89 : 2007 SCC OnLine SC 1076 at page 99 27. Before concluding, we may mention that, in th....