Customs, Excise and Gold Tribunal - Tamil Nadu
Sulex Corporation vs Commissioner Of Customs on 9 February, 1998
Equivalent citations: 1998(60)ECC469
ORDER
T.P. Nambiar, Member
1. The present appeal is directed against the order passed by the Collector (Appeals) in Order No. 86/96 dated 3.12.96.
2. Shri K. Parameswaran, the learned Counsel for the appellants stated that the issue involved in this case is whether the appellants had passed on the incidence of duty to the customers. He stated that the appellants imported thyristor which they used for manufacture of USP system and this USP system was sold by the appellants. He pointed out that the Assistant Commissioner has not given any finding that the duty incidence has not been passed on to the customers. He stated that in view of the fact that the goods are captively consumed necessary opportunity should be given to the appellants to prove their case that duty incidence has not been passed onto the customers. In this connection he pointed that the law was not clear at the relevant time therefore, the appellants had merely mentioned that no useful purpose would be served by remand of the matter. He pointed out that the decision of the Division Bench of the Hon'ble Madras High Court reported in 1995 (52) ECC 53 came at a later point of time. He stated that on receipt of this decision, the appellants submitted written submissions before the CCE(A) wherein they had stated in para 3 that no sufficient opportunity was given to the appellants by the Assistant Commissioner to prove their case that the incidence of duty has not been passed on to the customers. He pointed out that the CCE(A) without taking note of the same, merely rejected the written submission. Therefore, he pointed out that what was urged before him during the personal hearing with respect to this aspect should have been considered by him.
3. Replying the above said contention the learned DR Shri Rama Rao, stated that the appellants themselves raised a ground in the appeal grounds that there was no necessity to remand the matter to the Assistant Commissioner and the CCE(A) followed that course of action.
4. We have considered the submissions made before us. In the first instance we find that though the appellants have made a mention in the appeal grounds that the matter need not be remanded they have contended before the CCE(A) during the personal hearing that they have submitted written submission that they were not given sufficient opportunity by the AC to prove their case that incidence of duty has not been passed on to the customers. This is found in para 3 of the written submission. The Collector (Appeals) has not taken note of this written submission and further the appellants also took a plea during the personal hearing that they should be given an opportunity to prove their case that incidence of duty has not been passed on to the customers. This plea of the appellants have not been considered by the CCE(A). In this view of the matter, we are of the view that the impugned order requires to be set aside and we order accordingly and the matter is remanded to the AC with a direction that the appellants will be given opportunity to prove their case that incidence of duty has not been passed on to the customers. He should also taken note of the decision of the Madras High Court reported in 1995 (52) ECC 53. We make it clear that we are remanding the matter in view of the fact that sufficient opportunity was not given to the appellants to prove their case.
Dictated and pronounced in open Court.