ORDER

1. The order of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, under challenge dealt with the Pearl Barley, Purity Barley and Robinsons Patent Barley manufactured by the appellants. We are concerned in this appeal only with the product Robinsons Patent Barley.

2. It was contended on behalf of the Revenue before the Tribunal and at all earlier stages that the said product was a "preparation with a basis of starch" and, therefore, outside the purview of the exemption granted by an exemption notification dated 1-3-1970, issued under Rule 8(1) of the Central Excise Rules, 1944 whereby the Central Government had exempted prepared or preserved foods falling under Item 1-B of the First Schedule to the Central Excises and Salt Act, 1944, other than those specified in the Schedule thereto annexed, from the whole of the excise duty leviable a thereon. Item 14 of the Schedule referred to "preparations with a basis of flour, of starch, of malt extract... ". It was not in dispute that the said product fell under Item 1-B. The Revenue contended that the said product fell outside the ambit of the exemption granted by the said notification because it was a product with a basis of starch. The Tribunal, however, having heard the counsel, asked whether the product could not be called a preparation with a basis of flour and answered the question against the appellants; that is to say, the Tribunal held that the said product fell outside the ambit of the exemption because it was a preparation with a basis of flour.

3. It will be remembered that the case of the Revenue, which the appellant had been required to meet at every stage from the show-cause notice onwards, was that the said product was a preparation based on starch. Having come to the conclusion that the said product was not a preparation based on starch, the Tribunal should have allowed the appeal. It was beyond the competence of the Tribunal to make out in favour of the Revenue a case which the Revenue had never canvassed and which the appellants had never been required to meet. It is upon this ground alone that the appeal must succeed.

4. By orders dated 24-9-1985 and 19-8-1987, this Court noted that a writ petition had been filed by the appellants in the Calcutta High Court while still adopting the alternate remedy of this appeal, but it has not been contended before us that this appeal is not maintainable. In fact, neither party is able to tell us what happened to that writ petition. Having heard the parties, we dispose the appeal on merits in the manner indicated above.

5. The appeal is allowed. The judgment and order of the Tribunal under appeal is set aside. No order as to costs.