Full Judgment
However, going through the record, it appears that the matter calls for a remand and hence, admitting the same and granting waiver against pre-deposit, entire appeal is taken up for hearing.
This appeal is against the order of the Commissioner (Appeals) confirming Order-in-Original No. D-26/Division VI/93, dated 20-5-1994.
From the records it appears that the adjudicating authority has mentioned that even reply to the show cause notice has not been received. The appellants however have produced a copy of the reply along with postal acknowledgement showing due receipt thereof by the department. When the said point was urged before the Commissioner (Appeals), she accepted that some communication was received but held that it could not be presumed that the communication was in the form of reply to the show cause notice. When a communication is received and when it is alleged that it contained a reply to the show cause notice and receipt of such communication is not disputed, the basic presumption would be that the said communication contained the said reply. If it was not so, it was for the department to establish that the communication so received pertained to some another matter. The presumption in law has not been rebutted by the department and in that case it cannot be said that the appellants have not filed the reply.
The reply is not considered by the authority below and hence, the orders passed cannot be sustained. The same is, therefore, set aside and the matter is remanded back to the adjudicating authority before whom the appellants shall submit the copy of the reply and the said adjudicating authority shall consider the same, grant a personal hearing and decide the issue according to law.