Judgment:
2. The two orders of the Commissioner impugned in these appeals confirm the liability of the appellant to pay duty on goods imported by it, holding that the exemption contained in notification 203/92 is wrongly extended to the goods that it imported and that it was not available for the reason that one of the condition in the notification that modvat credit should not have been availed of in the manufacture of the exported goods is contravened.
3. Notice issued to each of the appellants was beyond six months from the relevant date and invoked the extended period contained in the proviso of Sub-section (1) of Section 28 of the Act. It alleged that "the said fact of availment of input stage credit was deliberately suppressed or wilfully mis-stated by the licence holder in the various shipping documents namely shipping bills, AR4 etc. and a false declaration was made in the various shipping bill regarding non-availment of credit under Rule 57A with fraudulent intention of duty benefits." The common counsel for the appellant contends that each of the appellant did not make any such statement in the shipping document that modvat credit had been availed of. He further points out that the Commissioner's order is entirely silent about the applicability of the shipping documents.
4. The proposal for invoking the extended period in the show cause notice appears to be self-contradictory. It alleges simultaneously deliberate suppression of the fact that credit was taken as well as wilful mis-statement that modvat credit was not taken. Apart from that when the extended period was invoked in the notice, it was upon the Commissioner to give the finding regarding the availability. We are supported in this view by the decision of the Tribunal in L.V.T.Products Ltd. v. CCE 5. Since the Commissioner has not given his findings, his order cannot be upheld. Counsel for the appellant states that he will make submission as to the availability of the extended period within a month from the receipt of this order. He further also points out that while his submission on merits have been considered by the Commissioner, the Commissioner will be required to consider them again while passing his order so as not to deprive the appellant of a full opportunity of appeal, in the event that the Commissioner passes an order adverse to it.
6. Accordingly the appeal is allowed, and the impugned order set aside.
The Commissioner shall pass orders on the notice in accordance with law after giving the appellants reasonable opportunity of being heard.