ORDER
Gowri Shankar, Member (T)
1. At the hearing on 13.10.2003, counsel for the applicant stated that the notice to show cause and the order of the Commissioner adjudicating upon it which was impugned in this appeal, were not received by it prior to 27.9.2003. It was only after issue of a notice from the department in July 2003 proposing to recover the duty and penalty confirmed in the Commissioner’s order that the applicant became aware that the order had been passed. It thereupon wrote to the department on 11.8.2003 asking for a copy of the letter which was communicated on 25.9.2003. The appeal has been filed on 8.10.2003. There is therefore no delay. The application for condonation of delay has been filed only as a measure of abundant caution. He was asked to file an affidavit of the applicant confirming the non-receipt of the order initially. The departmental representative was also asked to verify service from his records. The affidavit has been filed. The Joint Chief representative of the department tells us there is some indication in the Commissioner’s file about issue of notice and of the order. No acknowledgment from the applicant for receipt of either of these documents is present in the file.
2. In these circumstances, the affidavit affirmed by the applicant that the order was only communicated to it on 25.9.2003 stands unrebutted. Having regard to the facts of the case, we are of the view that the appeal has been filed in time. The application for condonation of delay is dismissed as unnecessary.
3. After hearing the parries on the stay application, we proceed to take up the appeal itself with their consent.
4. The notice issued to the appellant proposed to deny the benefit of the exemption contained in notification 203/92 to the goods that it imported on the ground that one of the condition subject to which modvat credit should not have been taken of the duty paid on any of the inputs used in or in relation to the manufacture of the export product, which is a pre-condition for the issue of advance licence and therefore the availability of the exemption had not been complied with. Counsel for the appellant contends that although credit was in fact taken under Rule 57 A of the Central Excise Rules on the inputs used in the manufacture of the export product, this was subsequently reversed. The appellant had therefore complied with the scheme of amnesty announced by the Board; He says that four other notices issued to it demanding duty on the same ground in respect of other goods imported by it had been brought on adjudication by accepting this claim. He produced a copy of an order issued on 29.8.2000 by the Commissioner of Customs vacating notice on the ground that board’s instruction in this regard had been complied with. These facts could not be brought to the notice of the Commissioner in the present case because notice of show cause was not received. He prays that the matter may be remanded to the Commissioner. The departmental representative does not raise any objection.
5. In the circumstances described above, the appeal is allowed and the impugned order set aside. The Commissioner shall after considering the submission that the appellant may make within two months from the receipt of this order, and after giving the appellant a reasonable opportunity of being heard, adjudicate on the notice in accordance with law.