ORDER
T.P. Nambiar, Member
1. This appeal is directed against the orders passed by the Commissioner of Customs & C. Ex. in Order No. 233/95 (B) OIA No. 139/96 dt 18.9.96. In terms of that order he confirmed the orders of the Asst. Commissioner wherein the appellants claim for refund was rejected. The claim of the appellants is that they have sent Gantry to the spot in view of the fact that the original gantry which was fixed to the machine in question was damaged. But by the time, the present gantry was sent by the appellants, the gantry already fixed to the machine in question was repaired. Therefore, this present gantry was again returned to the appellants. These are highly sophisticated instruments which are used in medical purposes for scanning the brain. When it was opened it was found that these goods were damaged in transit. The appellants intimated the same as per D3 intimation. Thereafter the processes as mentioned in Rule 173L (4) were carried out. The above said fact was verified by the Inspector on 30.12.92. This particular report in form V is communicated to the appellants.
2. Before the Commissioner (Appeals) the appellants made a submission as could be seen from the Order-in-Appeal that they have sufficient documents supporting the receipt of material into the factory including the D3 intimation, intimation regarding completion of the processes and the form 5 register. Therefore, Form V Register is an important document which is to be looked into by the Commissioner (Appeals). It is seen from the impugned order that the Commissioner (Appeals) has not given any finding with respect to the form V register.
3. The Ld. advocate Shri Rajesh Chander Kumar appearing for the appellants relied on the following decisions:–
1995 (77) ELT 149
1995 (79) ELT 437
4. I heard the pleas made by the Ld. Advocate and considered the submissions of the Ld. JDR for the department.
5. It is now seen that the impugned order proceeded on the basis that the appellants received the same in some condition i.e. in the packed condition. But what is important to see is that these instruments are highly sophisticated in nature. Even in the D3 intimation there is a declaration to be made by the appellants which goes to show that in that declaration they should also mention as to whether these goods have suffered any damage during transit. Therefore, it is seen that merely because the goods were sent back in the packed condition, the damage to the same in transit cannot be ruled out. Whether actually any such processes are carried out or not has to be determined in the light of the Form V. Form V, which is now produced before me, shows that certain processes have been carried out.
6. The Ld. advocate states that it was produced before the Commissioner (Appeals). But there is nothing in the impugned order wherein he slated that it was produced. The order only shows that the appellant stated before him that they have such evidence. However, it is not very clear whether it is produced or not. Even if it is produced, he has failed to take into account that form V register which is very material for deciding the case. In any view of the matter, the same not having taken into consideration, the proper finding could not have been arrived at by the appellate authority when the submission was made before him that they have such evidences, he also ought to have called the appellants to produce such evidence which is not done.
7. In such circumstances, denial of the same merely on the ground that it was sent back in the same packed condition is not correct in law. He should have gone into the question as to whether any processes mentioned in Rule 173L (4) was carried out by the appellant. In so coming to the conclusion. Form V is also a material piece of evidence and is required to be looked into these aspects. In such circumstances, the impugned order is not proper and I set aside the same and remand the matter back to the original authority to consider all the evidences in this regard including D3 intimation, form V and thereafter to decide the matter after granting a personal hearing to the appellants.
8. The appeal is allowed by way of remand.
Pronounced and dictated in the open court.