Customs, Excise and Gold Tribunal - Mumbai
Shalimar Plastics Industries vs Commissioner Of Central Excise And ... on 30 October, 2000
Equivalent citations: 2001(73)ECC722
ORDER J.H. Joglekar, Member (T)
1. On hearing both the sides, it appeared that at this stage itself, the appeal could be disposed of. This was done by granting waiver of pre-deposit of Rs. 2,58,215.
2. The situation in the appellants' case is unusual. The appellants imported plastic scrap in May/June 1993 and filed B/E for their clearance. There was a dispute as to whether the goods were scrap or prime plastic goods. At the direction of the High Court, the goods were bonded Under Section 49 of the Customs Act, 1962. The dispute was settled by the CEGAT directing clearance as scrap after mutilation. This order was dated 3.11.95. The goods were released to the appellants in June 1996 under a challan issued by the Central Warehousing Corpn. The assessee thereafter took the credit. After issuing show cause notice, credit was denied on the ground that the same was taken after six months from the date of issue of the duty paying documents. The appellants, then filed an appeal. The Commissioner directed them to pre-deposit the entire amount as condition to hearing of their appeal in his ex-parte order dated 27.10.99. On the failure of the appellants to comply therewith, he dismissed their appeal also in terms of Section 35F of the Central Excise Rules, 1944 again without a personal hearing.
3. In a number of decisions, the Tribunal have held that before passing an order on the stay application and thereafter before dismissal of the appeal, in terms of Section 35F of the Act, it is mandatory for the Appellate Authority to accord the opportunity to the assessee of being heard. On that ground alone, the Tribunal had allowed the appeals and remanded the matters for de novo consideration. In the present case, apart from this infirmity, I find that a very substantial question of law is involved in this proceedings and any insistence on pre-deposit would create hardship for the assessee. I allow this appeal and remand the matter to the Jurisdictional Commissioner (A) with the direction that the assessees be heard without insisting on any pre-deposit.