ORDER
JH Joglekar,Member(T)
1. On hearing both the sides, the appeal itself was taken up for disposal on granting waiver of pre-deposit of duty 12,53,627/- and penalty of Rs.63,000/-.
2. The Commissioner has confirmed the duty and has impose penalty on the observation that the appellants contravened the provisions of Notfn.No.203/93 Cus in as much as in the export modvat credit has been availed of.
3. Shri J.C.Patel, advocate appearing for the appellants submits that the show cause notice was not received by his clients.The adjudication order does not give any details as to the number of Bills of Entry and the dates thereof, of the goods imported and the details of the export goods manufactured on which the credit was availed of.In the absence of the details, he submits that he can not make any submission. He, however, submits that the burden of proof to is not be discharged by the transferee of the licence and therefor his clients is not responsible for the various allegations made on them.In support of his submission, he relied upon the judgment in the case of Goodluck Industries vs CC,Calcutta [1999(108)ELT 818(Tri]. He submits that although, the ratio of this judgment was departed from the later judgment [ 1000(120)E.L.T. 775-Plastchem Industries vs. CC.Nhava Sheva), the appeal of the importer was still allowed.He also submits that in in the absence of the dates of Bs/E,he is unable to state whether the show cause notice and the demand made thereunder is barred by limitation.As regards the non receipt of the notice, he submits that his clients’ unit is closed and the notice of present proceedings was received by him at his office as per the statement made in the appeal memorandum.
4. We have considered this submissions and find merit in it. We allow this appeal and remand the proceeding back to the Commissioner. He shall first make available to the present appellants copy of the show cause notice within a month of the receipt of this order. The present appellants shall make appropriate submissions is writing.The Commissioner then shall afford an opportunity to be heard and then pass appropriate orders.
(Dictated in Court)