Customs, Excise and Gold Tribunal - Mumbai
M/S. Goodwill Clothing Co. vs Commissioner Of Customs, Kandla on 1 March, 2001
ORDER J.H. Joglekar, Member (T)
1. On hearing Shri J.C. Patel, advocate for the applicants and Shri B.K. Choubey for the Revenue, it appeared that for the reasons recorded below, the final appeal itself could be disposed of. This was done by granting waiver of the pre-deposit of Rs. 16,78,510/- and penalty of equal amount.
2. The appellants were in possession of an advance licence. On the strength of the exports made the licence was made transferable and was transferred to Verma Chemicals. The goods were imported by Verma Chemical against the licence. At a later date the show cause notice was issued alleging that since in the manufacture of export products, input stage credit had been availed of, the benefit of notification 203/92 was not available and the duties were chargeable and penalties were imposable. The present appellants placed before the Commissioner copy of the relevant AR4 duly signed by the jurisdictional central excise authorities where it was certified that input stage credit had not been availed of. The relevant documents and certificate by the supporting manufacturer were also supplied by letter dated 15.9.1999. Subsequently, the Commissioner caused enquiries to be made from the officers holding jurisdiction over the factory of the supporting manufacture. The fact of export was certified by the jurisdictional officer. The report however contained the following sentence - "further it has been reported that in the absence of details regarding advance licence in AR4s it is not possible to ascertain whether the said exports were made against obligations of impugned advance licences."
3. This enquiry was conducted behind the back of the appellants. The detail were not disclosed to them. The Commissioner in the face of the additional facts also did not feel obliged to direct the importers to appear before him but mentioned that they had not written for personal hearing.
4. The lacuna as had been observed by the learned Commissioner and reproduced by us above was capable of verification if the appellants had been so directed. The Commissioner committed a gross violation of the principles of natural justice in relying upon the evidence which was collected behind the back of the appellants. Where he had the opportunity to get facts clarified further, he did not do so but ruled against the licence holders. He did not even consider the fact that by virtue of the transfer of the licence as also by virtue of goods being sold on the high sea basis, the appellants could no longer clarify for the terms "importer".
5. These factors have rendered in his order as defective and unsustainable. The appeal is allowed. The matter is remanded to the jurisdictional Commissioner. He shall direct the appellants to appear before him, permit them to make statements before him and them keeping our observation above in mind shall proceed to decide the case. The appellants shall co-operate.
(Dictated in Court)