ORDER
Shri Jet Ram Kait
1. This appeal and stay petition arise from the order in original No. 71.2001 passed by the Commissioner Customs, Chennai. Since we propose to dispose of the appeal itself on a short point of law, by remand of the matter, we grant waiver of pre-deposit of the duty and the penalty involved in this case and take up the appeal.
2. The appellants are importers of Proprietary &tailor made Equipments & Machineries for Dry Mix Plant under 5% duty EPCG scheme under Customs Notification No. 49/200. The department initiated proceedings for violations of various provisions of the Customs Act such as mis-declaration of the value and suppression of fact and ordered enhancement of the value of and suppression of the consignments covered by the relevant Bill of Entries from USD 15,58,226 to USD 20,59,848 on par with the Contract Value agreed upon in the supply agreement, and confiscated the goods with an option of redeem the same on payment of fine of Rs. 50,00,000/- under Section 125 of the Customs Act, 1962, besides penalty of Rs. 5,00,000/-. We observe that this is a case where the appellants have waived the right of issue of show cause notice and personal hearing as could be seen from para 6.2 of the impugned order. Accordingly, the department proceeded to adjudicate the case based on the evidence available with them and the proceedings culminated in the present impugned order which is under challenge.
3. The learned Counsel appearing for the appellants reiterated the grounds taken in the appeal and submitted that the appellants have a strong prima facie case in their favour and prayed for waiver of pre-deposit of the amounts involved.
4. The learned DR for the Revenue defended the view taken by the department.
5. On consideration of the submissions made and on going through the impugned order, we find that this is a case where the party has waived the right of issue of show cause and personal hearing. We are not repeating the facts in this case since we do not wish to express any opinion on the merits of the case. We observe that the Hon’ble Apex Court in the case of CCE Baroda vs. Kosan Metal Products Ltd reported in 1998 (38) ELT 573 (sc) held that issue of show cause notice to raise demand under Rule 9(2) read with proviso to Section 11A is mandatory and it has to be statutorily discharge. This bench has followed this judgement in the case of Hiflo Systems and Rhinopipes vide final order No. 580 – 581/2001 dated 19.4.2001 wherein the following judgements have been referred to :
(1) Univeral Electronics P Ltd. vs. CCE reported in 1998 (99) ELT 134
(2) Ekam Chemical vs. CC reported in 1998 (98) ELT 46 (Calcutta)
(3) CCE, Rajkot vs. Alfa Engineers reported in 1998 (100) ELT 157 (Tribunal)
(4) UOP vs. Madhumilan Syntex Pvt Ltd. Reported in 1998 (35) ELT 349 (SC)
All the above judgements apply mutatis mutandis to the Customs maters also. Waiver of issue of show cause notice can be exercised and accepted only in regard to the violations committed at the Airport and that too of a routine and venial nature.
5. Inasmuch as in the present case show cause notice has not been issued, although the appellants have waived the right of issue of the same and since issue of show cause notice is mandatory for demand of duty as held in the various judgements cited supra, we have no other option except to set aside the impugned order and remand the matter to the original authority for adjudication of the matter afresh in accordance with law by addressing to all contentions that may be raised by the appellants. We make it clear that we are not expressing any opinion on the merits of the case. The appellants shall be at liberty to adduce all the evidence in support of their contention. The appeal is thus allowed by remand.