ORDER
1. Appeal is taken up for disposal with consent of both sides after waiving deposit.
2. The appellant brought in various consignments of patent or proprietary medicaments manufactured by it for the purpose of rectification and return. After rectification, it cleared them under the provision of Rule 173H. Notice was issued to it alleging that the facility provided in this rule for repair or reconditioning of clearance without payment of duty could not be availed of for the reason that one of the requirement in that rule that the returned consignment should be accompanied by documents showing payment of duty paid on it when it was initially cleared had not been complied with. In the reply to the notice the appellant contended that it had written to the Commission, asking for general relaxation from the applicability of this provision for the reason that particulars of evidence of duty payment could be established from the details of the batch number mentioned in the manufacturer’s copy of the invoice which was issued when the goods was cleared. It pointed out that since it is only part of the consignment which is cleared under an invoice that is returned by a dealer or other such consignee it would not be possible for the dealer to return the duty paying document for that part of the consignment. The Assistant Commissioner did not consider these submissions in the order that has been confirmed by the Commissioner (Appeals) and demanded the duty.
3. The contention raised by the counsel for the appellant in this regard has to be accepted. The proviso to sub-rule (2) of Rule 173H itself empowers the Commissioner relax the requirement of production of duty paying documents subject to such conditions as may be imposed, if he is satisfied that the identity of the goods can be established by other evidence. It appears that this power has been delegated to the Assistant Commissioner. The Assistant Commissioner should have considered the requests for relaxation that has been asked for. The counsel for the appellant says that he would be able to demonstrate the fact of payment of duty from the manufacturer’s copy of invoice.
4. The appeal is accordingly allowed and the impugned order set aside. The Assistant Commissioner shall give the appellant an opportunity of being heard to make submission in support of the claim that the goods had been cleared on payment of duty. After considering these submissions and hearing the appellant the Assistant Commissioner shall pass orders in accordance with law.