Judgment:
1. Appeal taken up for disposal with the consent of both sides after waiving deposit.
2. In the order impugned in the appeal, the Commissioner has held that nine consignments imported by the appellant were not entitled to the benefit of the Notification 203/92 for the reason that the appellant availed of the Modvat facility in relation to the manufacture of the exported product, and thereby contravened one of the conditions of the notification. He has also imposed penalty under Section 112 of the Act on the appellant.
3. The Commissioner has recorded in his order that, despite opportunities being given, the importer did not appear for hearing before him or file a reply to the notice. He has further recorded that the letter dated 20-11-1998 of the importer was received seeking adjournment on the ground that some amount demanded had not been deposited. In its letter dated 9-11-1998 addressed to the office of the Collector of Customs, referring to the show cause notice and the personal hearing to be held on 17-11-1998, the importer had said that it had availed the amnesty scheme [in Circular] No. 285/1/97-CX., dated 10-1-1997. It had already reversed the excess Modvat credit according to the amnesty scheme and paid interest also. It had said that it was trying its best to get the certificate from the appropriate Central Excise authority as evidence of such reversal and asked for-some more time A receipt by the courier, which carried the letter to the department, supports the contention that it is delivered.
4. The extract of the personal ledger account shows reversal of some amount on account of Modvat credit on 31-1-1997. The circular of the Board referred to by the appellant extend to exporter regularisation of the contravention of the condition of the notification relating to prohibiting utilisation of Modvat credit subject to credit being reversed with interest at 20% between the date of export and date of reversal by 30-1-1997 (we have not reproduced all the condition of the scheme). It was the appellant's claim that this condition had been complied with. The Commissioner should therefore have considered whether this was done, and if there was some difficulty in getting the certificate from the Central Excise authorities in evidence of such reversal, which was beyond the control of the appellant, given a reasonable period of time for the purpose. As the matter stand before us, there is prima facie compliance with regard to the amnesty scheme.
Accordingly we allow the appeal and set aside the impugned order. The Commissioner shall give the appellant reasonable opportunity of producing evidence before him of the amnesty scheme and thereafter adjudicate on the notice issue.
5. The Advocate for the appellant says that the certificate referred to in paragraph 7 of the Board's circular is not being issued by the Central Excise department for a period of two and half years after reversal of the credit. No reason has also been furnished for this failure. We think it unreasonable that an importer or exporter should be kept in the dark particularly when he is acting in pursuance of the scheme announced by the Government. We therefore endorse a copy of the order to Commissioner of Central Excise, Meerut-II in the hope that he will take appropriate action in this regard.