2000 (1) TMI 511 - AT - Customs

Summary

Issues:
1. Stay Application - Opportunity of hearing before passing the impugned order by the Commissioner.
2. Non-availment of credit on raw material imported under Export and Import Policy - Duty demand, penalty, and absence of proof.
3. Validity of the impugned order - Lack of opportunity granted to prove non-availment of credit.

Analysis:
1. The appellants filed a Stay Application contending that they were not given a hearing before the Commissioner passed the impugned order. The Order-in-Original showed that notices were sent to the appellants, but they did not appear. However, it was not clear if the notices were received by the appellants. The appellants were burdened with duty demand and penalty for not producing necessary documents related to credit on imported raw material. They presented a certificate supporting their claim of non-availment of Modvat facility. The Tribunal found a prima facie case and allowed the waiver of pre-deposit for the appeal hearing.

2. The appellants imported raw material under the Export and Import Policy but failed to provide proof of non-availment of credit as required. A Show Cause Notice was issued demanding duty payment, interest, and penalty under the Customs Act. Despite notices, the appellants did not appear, leading to the confirmation of duty and imposition of penalty by the Commissioner. The Tribunal, upon hearing both sides, noted the absence of a proper opportunity for the appellants to prove non-availment of credit. The appellants' counsel requested a remand for a fresh decision with proper hearing, supported by a certificate from the Superintendent of Central Excise.

3. The impugned order was challenged on the grounds of lack of opportunity for the appellants to demonstrate non-availment of credit. The Tribunal observed that although notices were issued, there was no evidence of their receipt by the appellants. The duty demand and penalty were upheld due to the appellants' failure to provide the necessary certificate, which they later produced before the Tribunal. As the order was passed without hearing the appellants and the certificate had a significant impact on the case, the matter was remanded to the Commissioner for a fresh decision after affording the appellants a proper hearing. The Commissioner was instructed to ensure correspondence with the correct address provided by the appellants for further proceedings.