Customs, Excise and Gold Tribunal - Mumbai
Sterlite Industries (I) Ltd. vs Commissioner Of Customs And Central ... on 19 March, 2004
ORDER Jyoti Balasundaram, Member (J)
1. After hearing both sides for some time on the application for waiver of pre-deposit, we find that it was possible to decide the appeal itself; hence after waiving pre-deposit we take; up the appeal itself for hearing with the consent of both sides.
2. The appellants herein who are engaged in the manufacture of jelly filled telecom cables purchased 8mm copper rod from their Silvassa unit for drawing into copper wire of 2.5mm. Sometimes when during the process of drawing, copper wire of the required quality is not drawn, the appellants send the copper wire under Rule 57F(4) of the Central Excise Rules, for conversion into copper rods to Piparia unit. Show cause notice dated 02/05/2002 was issued for recovery of duty of rejected copper wire of 2.5mm sent to another unit for conversion into rods. Notice also proposed imposition of penalty; notice was adjudicated by the Additional Commissioner who confirmed the demand of Rs. 18,72,649/-and imposed penalty of equal amount rejecting the plea of the assessees that the issue in dispute was covered by the larger bench decision in the case of Wyeth Laboratories v. CCE 200 (120) ELT 218. The appeal along with the application for waiver under Section 35F of the Central Excise Act was filed before the Commissioner (Appeals) who vide the order dated 14/10/2003 directed pre-deposit of the entire amount of duty and penalty. The appellants received the stay order on 22/11/2003 and on 02/12/2003 they filed application for modification; the impugned order was passed much prior to the filing of the modification application, dismissing the appeal for non-compliance. Hence this appeal.
3. We agree with the appellants that the order has been passed in gross violation of principles of natural justice as they were not heard on the modification application, nor they were heard before the dismissal order was passed. We therefore set aside the impugned order and remand the case to the Commissioner (Appeals) for fresh decision after hearing the appellants, first on their application in terms of Section 35F of the Act and thereafter on their appeal.
4. The appeal is thus allowed by remand.