MAYA SPINNERS Vs. CCE, INDORE

JUDGEMENT

(1.) Upon careful examination of the facts and circumstances of this case as apparent on record and upon hearing both sides, I am allowing this application unconditionally and, in the interest of justice, proceeding to dispose of the appeal itself finally.

(2.) The appellants are a 100% Export -Oriented Unit and are holders of Private Customs Bonded Warehouse Registration as well as Central Excise registration for manufacture of cotton yarn. A certain quantity of cotton yarn, manufactured by them and cleared from their factory, was exported through M/s ATL Textiles Ltd. on execution of the required bond under Rule 13 of the Central Excise Rules. However, it appears, the required documentary proof of export was not furnished to the Customs authority concerned. Therefore, by show -cause notice, the department sought to recover the Central Excise duty payable on the aforesaid quantity of cotton yarns, amounting to Rs.2,75,908/ - and to impose penalty on the appellants. The appellants contested the show -cause notice. The Assistant Commissioner who adjudicated the dispute, confirmed the demand of duty against the appellants and imposed on them a penalty of Rs.30,000/ - Against the order of the Assistant Commissioner, the party preferred appeal to the Commissioner (Appeals). They also filed therein a stay application praying for waiver of pre -deposit of the duty and penalty amounts and for stay of recovery thereof, pending the appeal. The Commissioner (Appeals), without affording any opportunity of personal hearing to the party, disposed of the stay application as per "Interim Stay Order" dated 6/7.7.99, whereby the requirement of pre -deposit of the penalty amount was waived but the duty amount was directed to be paid within a period of three weeks. This order was received by the party on 16.7.99. Subsequently, they sent a representation dated 17.7.99 to the Commissioner (Appeals) underlining the need of personal hearing in stay applications and citing case law in support of the submission. In the said representation, the appellants specifically requested for recalling the "Interim Stay Order" and passing fresh order after giving an opportunity of personal hearing in the interest of justice. The appellants claim that the representation was sent through courier and that it was duly received by the addressee. Later on, the Commissioner (Appeals) found that the duty amount had not been deposited as per the Interim Stay Order, and proceeded to dispose of the appeal itself on that basis. Accordingly, he rejected the appeal for want of pre -deposit of the duty amount under Section 35F of the Central Excise Act as per order dated 22/23.8.2000, which was passed without granting any opportunity of hearing to the appellants. The appellants are presently aggrieved by this order of the Commissioner (Appeals).

(3.) I have heard both sides.