Customs, Excise and Gold Tribunal - Mumbai
V.M. Prints vs Commissioner Of Customs And Central ... on 28 February, 2005
ORDER
Jyoti Balasundaram, Vice President
1. The above appeal was dismissed vide order No. A/566/WZB/2004-C-II dated 02/07/2004 for non-compliance with the Stay Order dated 10/05/2004 by which pre-deposit of entire duty and penalty was directed. The applicants, who are represented by their advocate, state that the notice of hearing of stay application was not received by them; that even a copy of the order was not received and they came to know about the dismissal of their appeal only from the letter dated 16/09/04 of Jurisdictional Range Superintendent asking them to pay up the dues.
2. In view of the above submission, which has not been found to be incorrect, we set aside the dismissal order and restore the appeal and stay application to their original numbers.
3. The application for Restoration of Appeal is hereby allowed.
4. Now we take up the stay application. The applicants' submission that the Mill was dosed since 23/11/1997 and the custody of the mill was given to M/s Waghbakriwala Rayons from 20/02/98 is borne out by letter dated 17/03/98 addressed to the Range Superintendent by M/s Waghbakriwala Rayons stating that the applicants hereinabove left the factory and gave possession to them as per High Court consent order, and the order dated 17/09/2004 of the Commissioner (Appeals), who has relied upon the verification report of the Assistant Commissioner that the last entry of production/clearance by M/s V.M. Prints is in September 1997 and there is no entry of production/clearance from October 1997 and unit is closed after that period and in December 1999 licence has been issued to M/s Waghbakriwala Rayons to set aside the demand on the applicants under the compounded levy scheme. In other words, the above two documents bear out the applicants' contention that since their unit was closed from October 1997, the duty demand is not sustainable.
5. We, therefore waive pre-deposit of duty of Rs. 97,74,194/- and penalty of equivalent amount imposed by the Commissioner. Since the order dated 17/09/2004 of the Commissioner (Appeals) has been passed subsequent to the impugned order of the Commissioner and subsequent to the filing of the above appeal, we set aside the same and remand the case to the Jurisdictional Commissioner for fresh decision in accordance with the law after satisfying himself of the fact of closure of the appellants unit since September 1997 in the light of the Commissioner (Appeals) order dated 17/09/2004.
6. The appeal is thus allowed by remand.
(Operative part pronounced in court)