1. None is present for the appellants/applicants inspite of notice.
Hence we beard the learned SDR and perused the records.
2. After hearing the stay applications for some time we find that it was possible to decide the appeals themselves at this stage, and therefore after waiving the requirement of pre-deposit of the duty and penalty as detailed in the Annexure-I to this order, we proceed to dispose off the appeals themselves.
3. The appellants herein are manufacturers of export goods falling under Chapter 28, 29, 31 and 32 of the Schedule to the CETA, 1985 and availing modvat facility under Rule 57A/57T of the Central Excise Rules, 1944 for availing modvat credit of the duty paid on inputs as well as capital goods. Show cause notices were issued to the appellants proposing denial of modvat credit on the ground inter alia that credit was availed on defective invoices inasmuch as they did not contain pre-authentication, that the consignee was not the assessee, etc; and that some of the items did not fall within the definition of capital goods. Demands were confirmed and penalties imposed against which appeals along with stay applications were preferred before the Commissioner (Appeals). The lower appellate authority directed pre-deposit of amounts set out in Annexure -II to this order; for failure to comply with the pre-deposit direction, the appeals were dismissed. Hence these appeals before the Tribunal.
4. The grievance of the appellants is that the orders passed on their applications for waiver in terms of Section 35F of the Central Excise Act, 1944 were ex-parte orders without affording them any opportunity of personal hearing; that their modification applications on the ground inter alia that they had appealed to the Appellate Authority for Industrial and Financial Reconstruction against BIFR's order was also not considered by the Commissioner (Appeals); and that the appeals were dismissed without any hearing. We are of the view that appellant's grievance is well founded and that there has been breach of the principles of natural justice by the Commissioner (Appeals). Further we note that many of the items, which have been held not to be capital goods, have been held to be capital goods by various decisions of the Tribunal. For these reasons we set aside the impugned orders and remand the cases for fresh decision to the Commissioner (Appeals) who shall pass fresh orders after extending a reasonable opportunity to the appellants of appearing before him and putting forth their defence.
5. The appeals are thus allowed by way of remand.
Annexure-I