ORDER
C. Satapathy, Member (T)
1. After allowing the miscellaneous application for early hearing and dispensing with the requirement of pre-deposit, we take up the appeal for disposal with the consent of both sides.
2. Shri B.V. Kumar, learned Advocate appearing for the appellants, states that the issue involves clearance under Notification No. 2/95, dated 4-1-1995. He submits that the appellants were allowed by the Development Commissioner to clear the impugned goods for home consumption keeping in view the goods, which were exported and were expected to be exported from the appellants’ unit. Admittedly, there was a shortfall in exports and, therefore, proceedings were initiated both by the Development Commissioner as well as the Customs authorities, keeping in view such shortfall. The learned Advocate points out that the duty demand by the Customs authorities has been confirmed. However, keeping in view the subsequent developments including better export performance by the appellants, the Development Commissioner has dropped the proceedings. He also relies on the decision of the Tribunal in the case of Kathyayani Exports v. CCE, Mumbai reported in [2003 (156) E.L.T. 497 (T) = 2003 (58) RLT 450], to state that the goods cleared to DTA as per permission granted by Development Commissioner are entitled to benefit of the said Notification which is based not only on exports already made but also on expected exports. He submits that keeping in view the fact that Notification No. 2/95 refers to both exports as well as expected exports and also the fact that the appellants have improved their export performance subsequently which has been taken note of by the Development Commissioner in dropping the proceedings, the impugned order requires to be set aside.
3. We have also heard Smt. Radha Arun, learned SDR for the Department. After hearing both sides and on perusal of case records as well as the cited case law, we find that the impugned Notification No. 2/95 refers to goods exported as well as goods expected to be exported. We also find that the exemption under the said notification is subject to the satisfaction of the Assistant Commissioner or Deputy Commissioner in regard to conditions at (a), (b) and (c) to the 3rd proviso. In view of the fact that the Development Commissioner has dropped the proceedings against the appellants and their export performance has also improved subsequently, we set aside the impugned orders passed by the lower authorities and remand the matter for fresh decision by the original adjudicating authority who shall afford a reasonable opportunity of hearing to the appellants before passing a fresh order. The appeal is allowed by way of remand.