ORDER
Jyoti Balasundaram, Vice President
1. After hearing both sides for some time on the application for waiver of pre-deposit of duty of Rs. 9,86,102/- and penalty of Rs. 50,000/-, we find that it is possible to decide the appeal itself at this stage and hence proceed to do so after granting the prayer for waiver.
2. The demand is confirmed on the ground that condition (v)(a) of Notification 203/92 in respect of value based advance licences was violated by the appellants for the reason that they took modvat credit on inputs used in the manufacture of final products. We find that the case of the appellants throughout has been that out of the four bills of entry relevant in this case, one of them pertained to import under quantity based advance licences for which the relevant notification was Notification 204/92 and in respect of the remaining three bills of entry with regard to Notification 203/92, no credit had been availed and hence there was no contravention of any of the conditions of Notification 203/92 so as to warrant any demand of duty against them. In the impugned order, the Commissioner has recorded that the importers along with their counsel appeared before him and explained the case by submitting that in respect of bills of entry, claiming benefit of Notification 203/92, they have purchased export goods from the local market which were falling under Chapter 50, which were not covered during the relevant period within the ambit of modvat credit, and yet he holds that in spite of several opportunities for personal hearing, the importers did not appear for personal hearing. In this view of the matter, the interest of justice requires that the impugned order be set aside and the case remitted to the jurisdictional Commissioner for fresh decision in accordance with law after extending a reasonable opportunity to the appellants to be heard in their defence and after considering the reply already filed by the appellants. We trust that he will not make the same mistake as he has made in the present order by finding that the appellants did not appear in spite of several opportunities for personal hearing.
3. The appeal is thus allowed by remand.
(Pronounced in Court)