Per Justice K. Sreedharan:

When the stay application came up for orders, we heard the ld. Counsel representing the appellants and the ld. DR in detail. After perusing the records, we are disposing of the appeal itself without passing any separate order on stay petitions.

2. The appellants manufactures ayurvedic medicines. In respect of three products namely 'Panchphool Tel', 'Ghrit Kumari Tel' and 'Himani Kalyan Tel' stated to be patent ayurvedic medicines, classification declaration was filed on 1.3.97 for inclusion under tariff sub-heading 3003.39. Without affording any opportunity of being heard on the said declaration, by a communication dated 1.7.97, the products were classified under tariff sub heading 3305.10. Against the said order approving the classification, appellants filed appeal before the Commissioner (Appeals) and said appeal is still pending. While so demand notice dated 12.8.97 was issued directing them to pay the excise duty amounting to Rs. 60,077.73. The demand notice issued by the Superintendent was challenged in appeal before the Commissioner. The Commissioner rejected the appeal on the ground that the letter of the Superintendent was not an appealable order. Hence the present appeal.

3. According to the ld. Counsel representing the appellants, a duty demand could have been made by the competent authority only pursuant to show cause notice. No show cause notice was issued demanding the duty and according to Counsel, no opportunity was afforded to the manufacturer to submit his defence to the demand made by the Superintendent in the letter dated 12.8.97. Ld. Departmental Representative reiterated the contentions stated by the Commissioner in the order impugned.

4. Communication sent by the Superintendent demanding the duty amounting to Rs. 60,077.73/- cannot be sustained in law because it is not the outcome of an order of the adjudication preceded by issue of show cause notice. On this short ground the order is set aside. We hasten to add that this will not debar the department in initiating proceedings in accordance with the law for raising the duty demand on the product manufactured by the appellants.

5. Appeal is allowed as indicated above and the demand quashed.