ORDER :

S.N. Variava, J. - 1.This appeal by the assessee is against an order of the High Court dated 17th July, 2000.

2. Briefly stated the facts are as follows:-

The appellants bought 100% cotton fabrics from one M/s Gopi Synthetics and then exported the said fabrics. The appellants claimed rebate under Notification No. 29/96 -CE (NT) dated 3rd September, 1996 on the footing that duty had been paid by the manufacturer i.e. M/s. Gopi Synthetics. This rebate was denied on the ground that duty had been short paid by M/s. Gopi Synthetics inasmuch as they had availed of 60% deemed Modvat credit whereas they were only entitled to avail credit @ 50%. For this short payment of duty, a show cause notice was issued to M/s. Gopi Synthetics. After receipt of the show cause notice M/s Gopi Synthetics paid up the 10% duty which had been short paid. They then appealed against penalty which had been levied on them. The Commissioner (Appeals) waived penalty on the ground that short payment was not by reason of any fraud, collusion or any wilful mis-statement or suppression of facts. The appeal filed by the Department against that order was dismissed on the ground of non-compliance with statutory p