JUDGMENT
Jyoti Balasundaram, Member(J)
1. For reasons recorded below, we waive the pre-deposit of Rs. 7,68,257/- confirmed as duty and penalty of Rs. 40,000/- imposed upon the appellant and proceed to dispose of the appeal itself with the consent of both sides.
2. The case of the department is that the appellants who had imported goods duty free under the Value Based Advance Licencing Scheme in terms of Notification No. 203/92 Cus dated 19.5.92 had also simultaneously availed modvat facility on inputs used in the manufacture of the products against which VBAL was obtained by them or which were used for discharge of the export obligation against such Advance Licences, which was contrary to Condition No. v(a) of the above Notification and hence the benefit of duty free clearance is not available to them. We find that the appellants filed reply to the show cause notice in which they clearly stated that they had availed credit of duty paid on inputs imported under the Notification Supdt. of Central Excise confirming the above position, along with their reply. However, the Commissioner has recorded that no reply was filed by them. The assessee’s contention that notice of personal hearing before the Commissioner was not received by them stands unrebutted. In the above circumstances, we set aside the impugned order and remand the case back to the jurisdictional Commissioner for fresh decision in accordance with law after extending reasonable opportunity of personal hearing to the appellants and taking into consideration the reply to the show cause notice as well as all submissions made before him.
3. The impugned order is thus set aside and the appeal allowed by remand.
