ORDER
Ms. Jyoti Balasundaram, Member (Judicial)
1. For the reasons recorded below, we dispense with requirement of pre-deposit of duty and penalty confirmed by the impugned order and proceed to take up the appeal itself for disposal with consent of both sides.
2. Duty of Rs. 14,10,622/- has been confirmed on the ground that the appellants were not entitled to avail of duty free clearance under notification 203/92 since they had availed of input stage credit which is contrary to the condition of the above notification.
3. Ld. Counsel Mr. Prakash Shah submits that there is no basis in the notice for such allegation and the finding is also based on total lack of evidence. He states that the reply to the show cause notice was filed in which it was only stated that they had not availed of modvat credit and due to the long lapse of time, the appellants are not a position to bring on record the documents of the supporting manufacturer (except one who had reversed the credit taken and availed of the Amnesty scheme) to show that they had not availed of the benefit. He says that the demand is time barred since the notice in this case is dated 29.1.99 while the period covered is September 1993 to April 1994, which means that part of the period is also beyond the extended period of five years.
4. SDR, Mr. Sarkar reiterates the finding of the adjudicating authority highlighting only the aspect that opportunity of hearing was not availed by the appellant the therefore the Commissioner proceeded to pass the impugned order since every exporter taking double benefit which was not available to them.
5. We have carefully considered the rival submission. We have also perused the final order C-I/1817/18/WZB/2000 dated 15.5.2000 in which it has been held in similar situations that the contention of the appellant that there is no basis for the demand has to be accepted. The bench has also held that there is no material justifying the allegation of suppression. The ratio of the above order applies squarely to the present case and therefore the appellant succeeds both on merits as well as on limitation.
6. The impugned order is set aside and the appeal is allowed.