LAWS(CE)-2002-9-87

NATIONAL WINDER Vs. COMMISSIONER OF C. EX.

Decided On September 19, 2002
NATIONAL WINDER Appellant
V/S
COMMISSIONER OF C. EX. Respondents

JUDGEMENT

(1.) In this application, the appellants pray for recalling the order passed by this Bench on 5 -4 -2002 rejecting the ROM application filed by them. In the ROM application, the appellants pointed out what they considered as an apparent mistake in Final order No. A/1519/2001/NB(SM), dated 18 -10 -2001. When the ROM application was taken up for hearing, there was no appearance of, or representation for, the party. An ex parte order was passed, wherein it was observed that there was no mistake apparent from the record. The ROM application, thus, got rejected.

(2.) Today ld. Counsel for the applicants reiterates the grounds stated in the application and argues that the inference of concession drawn by the Bench from the first sentence of para 3 under "grounds of appeal" in the memorandum of appeal is erroneous. Ld. Counsel elaborates his point by reading the entire para 3. On a perusal of paragraph No. 3 under "grounds of appeal" in the memorandum of appeal, I find much force in the submission made by the counsel today. The applicants had applied on 10 -3 -95 to the Assistant Commissioner for permission to take Modvat credit on the strength of original copy of invoice. They had also produced materials seeking to prove that the duplicate copy of invoice had been lost in transit. The Assistant Commissioner, however, did not examine the question whether the duplicate copy of invoice had, in fact, been lost in transit, nor did he properly entertain the application of the party. I find that these facts and circumstances have been stated in para 3 ibid. Para 10 of the judgment of the Tribunal's Larger Bench in the case of Avis Electronics [2000 (117) E.L.T. 571 (T -LB)] requires to be applied to the facts and circumstances brought out in para 3 of the present appeal memorandum. When this is done, it would become obvious that the appellants in this appeal have not conceded any liability on the strength of the Larger Bench decision. Thus there is a mistake apparent from the record, which requires to be rectified.

(3.) After hearing both sides, I find that there is no dispute of the fact that the appellant's application dated 10 -3 -95 for permission to take Modvat credit on the basis of original copy of invoice was not disposed of on its merits by the Assistant Commissioner in a manner befitting a quasi judicial authority. This situation warrants a remand of the matter to the original authority.