ORDER
JH Joglekar, Member (T)
1. On hearing both the sides it appeared that the issue being capable of settlement, the appeal itself could be taken up for disposal. This was done by granting waiver of predeposit of Rs. 5,05,676.16 confirmed as duty and penalty of Rs. 50,000/-.
2. The appellants imported goods free of duty in terms of Not NO. 203/92-CUS. Show cause notice was issued alleging that in the export products input duty credit has been availed of. Customs duty leviable on goods were demanded. The Commissioner passed the ex-parte order mentioned that the importers had not filed any reply to the show cause notice nor had they appeared for the personal hearing. On his confirming the duty and imposing penalty as stated above, this appeal has been filed.
3. Reliance is placed on Tribunal’s order No. C.I/877/WZB/2000 dtd. 2.3.2000 in support of the submission that demand was hit by limitation in as much as the show cause notice died not allege suppression etc. It is claimed that the failure to reply to the show cause notice was on the ground that the importers were undergoing proceedings under the Sick Industrial Companies Act. Statement is made that before making the export, the importers had reversed the credit taken and certificates to the effect given by the Jurisdictional Excise Officers were available.
4. We have considered the submissions made. On perusal of the fact that the importers have reversed the modvat credit prior to the export of the goods, were are of the opinion that the Commissioner should have the opportunity to examine the evidence and to pass appropriate orders in denovo proceedings. As regards the submission on limitation, we have perused the show cause notice which vide para 4 did allege suppression justifying the extended period. But since we are remitting the proceedings back to the Commissioner, we leave this issue open to argue by the appellants before him in case the Commissioner is not satisfied the ground of reversal of modvat credit.
5. Appeal is allowed by way of remand.
(Dictated in Court)