COSMOS FILMS LIMITED Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE predeposit of duty of Rs. 9,26,587/ - confirmed on the ground of wrong availment of modvat credit and penalty of amount equal to duty is waived and recovery thereof stay and the appeal itself is taken up for hearing with the consent of both sides.

(2.) THE duty demand arises on account of alleged shortage of 97 MTs Polypropylene granules during the period of three years. It is the submission of the appellant that shortage on account of process loss incurred at three different stages of manufacture of BOPP Films, which is the final product of the appellants. The Ld. Counsel submits that after hearing before the Commissioner (Appeals) then filed written submission explaining the process loss and this explanation was received in the office of the Commissioner (Appeals) on 29.11.2000, but the order was passed on the next date i.e. on 30.11.2000 without considering their submission based on technical literature. He further submits that the demand of duty is not sustainable as it has been raised and confirmed under Rule 57I (i) while if at all the relevant provisions would have been Rule 57 I (ii) of the Central Excise Rules. He further submits that the penalty is not maintained in law as penalty can be imposed only if duty demand is under Rule 57(I) of the Central Rules. Ld. DR Shri B. B. Sarkar fairly leaves the matter for decision by the Bench. After considering paragraph 13 of the impugned order wherein Commissioner (Appeals) has stated that appellants did not substantiate their claim that shortage was on account of process loss.

(3.) SINCE I am satisfied that the explanation was before the Commissioner (Appeals) before passing of the impugned order but probably not put up to him and the order was passed immediately thereafter, the interests of justice require that the matter be heard afresh by the lower appellate authority who shall pas orders after extending reasonable opportunity to the assessees of being heard and explaining their case with reference to technical material. The appeal is thus allowed by remand.