ORDER
Jyoti Balasundraram
1. For reasons recorded below, we waive the predeposit of duty of Rs.12,15,081/- and penalty of Rs.25,000/- and proceed to hear and dispose of the appeals themselves with the consent of both sides.
2. The appellants herein are engaged in the manufacture of self and supporting towers, exclusively used in the installation of Multi Access Rural Radio System by the Department of Telecommunications of the Government of India. They filed classification lists/declarations under CET Sub-heading 8525.00 and paid duty at the applicable rate i.e @ 13% adv. Show cause notices issued alleging short levy on the ground that the correct classification of the goods was under CET Sub-heading 7308.20 attracting dty @ 15% adv. The demands were confirmed by the Assistant Commissioner who also imposed penalty for contravention of the rules; the assessees filed appeals before the commissioner (Appeals) along with stay applications and interim stay order dated 27.6.2000 was passed directing predeposit of the entire duty and penalty amount. On 21.8.2000 the assessees made a request for reconsideration of the stay order, enclosing clarifications by the Ministry of Communications, Department of Telecommunications that the rate of duty is 13% adv. Thereafter a letter dated 31.8.2000 was received by the assessees directing them to appear for personal hearing on 11.9.2000. The appellants submit that the lower appellants authority was not available on that date and hence they returned from the office of the Commissioner (Appeals) without being heard. Although they were informed that fresh date of hearing would be communicated, since no such hearing was fixed, they wrote again on 6.11.2000 to the office of the Commissioner (Appeals) stating that they were awaiting the next date of hearing. However, by order dated 28.11.2000, the appeals have been dismissed for non-compliance with the statutory requirement of Section 35F of the Central Excise Act.
3. In view of the above position, we hold that this is a fit case for setting aside of the impugned order and remanding the case to the Commissioner (Appeals) for fresh decision, initially on the applications under Section 35F of the Act and thereafter on the merits of the appeals. We order accordingly. Reasonable opportunity of hearing shall be extended to the appellants before passing of fresh order.
4. The appeals are thus allowed by remand.
[Dictated in open court]