Full Judgment
2. The learned counsel contended that the appellant is covered under Notification No. 129 dt. 17.02.1986 and the appellant has fulfilled all the conditions as mentioned in the said Notification and as such the appellant is fully entitled to the benefit as contained therein. He contended that the lower authorities have failed to deal with the conditions as mentioned therein.
3. In support of his contention, the learned counsel relied on the decision in the case of Echjay Industries Pvt. Ltd. v. Union of India and Anr. reported in 1994 (52) ECR 366 (Bombay), and the case of Kesoram Industries Ltd. reported in 1999 (108) ELT 0694 (Tri.). he also contended that the Commissioner (Appeals) has proceeded ex-party in the matter. He finally concluded that since the issue involved is squarely covered by the aforesaid two decisions, the impugned order may be set aside and the appeal may be allowed with consequential relief to the appellants.
4. Shri S.S. Bhagat, learned S.D.R. appearing on behalf of the Revenue contended that the Notification No. 129 of 1986 is not applicable in the present case. He contended that the relevant notification is 160 of 1992 and the appellant was supposed to fulfill the requirement as mentioned therein. He also contended that the goods were damaged when they were out of the customs control and as such the appellant cannot claim any benefit on that account. He fairly submitted that since the lower authorities have failed to deal with the notification relied by the appellants and the Commissioner (Appeals) has decided the case ex-party, the appeal may be remanded to the original authority for denovo adjudication to pass a fresh speaking order.
5. After hearing rival submissions, perusal of the case laws and the records, we find that the lower authorities have failed to deal with the applicability of Notification No. 129 of 1986 as relied by the appellant and the Commissioner (Appeals) has passed ex-party order, we remand the matter to the original authority for fresh adjudication and record his findings on each of the issue raised before him after affording reasonable opportunity of being heard to the appellants.