FLEX LAMINATORS Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THIS appeal is directed against the Order -in -Appeal dated 13 -5 -2004 which upheld the order -in -original confirm the demand and imposing penalty.

(2.) THE relevant facts that arise for consideration are that the appellants are manufacturers of plastic granules and they stopped the manufacturing of plastic granules. The appellants had availed Modvat credit on the capital goods purchased by them in the year 1994 -95 for such manufacturing activity. Somewhere in September, 2000, the appellants decided to close down the section and shift the same to their another factory at Malanpur. They intimated to the Department vide their letter dated 16 -9 -2000 regarding the removal of such capital goods without payment of duty under the provisions of Rule 173 read with Rule 156A of the erstwhile CER, 1944. Having not received any response from the authorities, the appellant on their own removed the capital goods on 4 -10 -2000 and 6 -10 -2000 by using the AR -3A given by the Superintendent of Central Excise, Malanpur Range. The appellant was issued show cause notice on 24 -1 -2001 for the demand of the amount of credit availed by them on such capital goods. The adjudicating authority confirmed the demand vide its ex parte order -in -original dated 29 -11 -2001 and imposed penalty. On an appeal, the Commissioner (Appeals) also upheld the said order. Hence this appeal.

(3.) THE learned Advocate appearing on behalf of the appellants submits that the appellant had sought adjournment of the personal hearing which was not granted to them and the adjudicating authority confirmed the demand without following the procedures of principles of natural justice. It is also his submission that there was no violation of Rule 57AB inasmuch as that there is no procedure to clear the warehoused capital goods from the factory. It is also submitted that even if it is so, the value which has been worked out by the authority demanding the duty is not correct and should have been worked out according to the circular issued by the Board for adjustment of the depreciation from the original value. It is also his submission that even if the amount of duty is paid by them, the same is eligible for availment of Modvat credit in other unit at Malanpur.