ORDER
J.H. Joglekar, Member(T)
1. On hearing both sides on the stay application, the appeal was taken up for final disposal after disposal after granting waiver of pre-deposit of duty of Rs.5,66,169/- and penalty of Rs.30,000/-.
2. We have heard Shri J.C.Patel,, advocate for the appellants and Shri B.K. Choubey for the Revenue.
3. The appellants obtained an advance licence on 16.4.1993. The export products were shown as bicycle tyres and tubes.This licence was made transferable on 8.2.1994 on the observation that the export obligation had been fulfilled.Shri Patel states on instruction that the licence was duly transferred.The transferee holder imported certain goods free of duty vide bill of entry dated 18.4.1994. A show cause notice was sent on 29.1.1999 to the present appellants alleging that in the manufacture of the export products, input stage credit had been availed of .It is alleged that this contravened the provisions of the notification 203/92-Cus.Duty was demanded.Shri Patel states that his clients received neither the show cause notice nor the summons to appear for personal hearing but that they did receive the final order.He submits that when someone else had imported the goods, the appellants could not be termed as importers and duty could not be demanded from them.It is also his submissions that the export products, namely tyres and tubes for bicycles did not attract any excise duty and therefore the question of availment of modvat credit did not arise.Shri Choubey submits that since the final order was received the show cause notice and summons for hearing which were sent to the same address also must have been received by the appellants and they must have deliberately not appeared.
4. We have considered the submissions.In view of the specific claim that the appellant was not the importers and that the export goods were not dutiable, we feel that the Commissioner should go into the twin aspect.We therefore allow this appeal and direct the jurisdictional Commissioner to reexamine the issue.He shall first cause a copy of the show cause notice to be sent to the present appellants.He should also make available copies of the cited bills of entry to the appellants. He shall thereafter summons the appellants for hearing.The appellants shall place before him all relevant materials and the Commissioner then shall pass appropriate orders.
(Dictated in Court)