ORDER
Jyoti Balasundaram, Member (J)
1. For reasons recorded below, we waive pre-deposit of duty of Rs. 16,52,803/- confirmed against the appellants, on the ground that they had wrongly availed Modvat credit and penalty of Rs. 5,000/- imposed upon them, and proceed to hear and decide the appeal itself with the consent of both sides, as the issue lies within a very narrow compass.
2. In this case the show cause notice was issued to the appellants who are manufacturers of cotton yarn and cotton fabrics falling under Chapter 52 of the Schedule to CETA, 1985, proposing denial of Modvat credit on
three grounds: viz. (1) although the goods were received during May, 1997 to March, 1998 declaration under Rule 57T(1) was filed only in August and September, 1998; (2) goods were not capital goods as per the definition in Rule 57Q; and (3) some of the invoices did not bear preprinted serial numbers as required under Rule 57G.
3. The Assistant Commissioner, however, adjudicated the notice denying the credit only on the ground mentioned at serial number (1) above, namely that the declaration was filed after more than three months from the date of receipt of the capital goods.
4. Aggrieved by the order of the Assistant Commissioner the assessees preferred an appeal along with an application for waiver of pre-deposit before the Commissioner (Appeals) in which various pleas were raised, including that they had filed declaration on 30-4-1997 and forwarded under certificate of posting. The Commissioner (Appeals), however, was not satisfied with the ground for waiver and hence passed an order directing pre-deposit of the entire amount of duty and penalty. For non-compliance with the condition of pre-deposit, the assessee’s appeal was dismissed by the lower appellate authority.
5. We have heard both sides.
6. We find that there is no discussion in the adjudication order on the grounds raised in the show cause notice and further it is stated by the learned Counsel before us that the appellants had nowhere admitted that the declaration was filed late and it has been their contention right through the proceedings that the declaration was filed before the receipt of the capital goods in their factory. In these circumstances we set aside the impugned order which has been passed without going into the merits of the case and remand the case to the adjudicating authority for fresh decision on merits. He shall pass fresh orders after extending a reasonable opportunity to the appellants of being heard in person.
7. The appeal is thus allowed by remand.