2003 (4) TMI 420 - AT - Central Excise

Summary

Issues:
Delay in filing appeal due to misunderstanding of order's appealability, application of Clause 34 of the Adjudication Manual, determination of Annual Production Capacity, grievance regarding relevant rule application.

Analysis:
The judgment deals with an application to condone a delay of 304 days in filing an appeal by the appellant, engaged in the production and clearance of Hot re-rolled products. The delay was attributed to a misunderstanding regarding the appealability of the order dated 14-12-2001 by the Commissioner, which determined the Annual Production Capacity of the Hot Rolling Mill. The appellant contended that the delay was due to a bona fide mistake as the order did not contain a preamble, seeking appealable clarity through representations. The appellant relied on Clause 34 of the Adjudication Manual and previous court decisions to support the argument that the order was not appealable due to the absence of a preamble.

The Tribunal considered the arguments presented by both parties. The Departmental Representative argued that the order dated 14-12-2001 was indeed a final order fixing the Annual Capacity, supported by a prior provisional order and detailed consideration of appellant's contentions. The Tribunal emphasized that the absence of a preamble does not negate the finality of an order, citing Clause 34 of the Adjudication Manual. Referring to previous court decisions, the Tribunal highlighted that the absence of a preamble does not render an order non-appealable, especially when the appellant acted under a genuine misunderstanding.

The Tribunal acknowledged the appellant's genuine misunderstanding and the delay caused by the Department's late response to the representations. Considering the circumstances, the Tribunal deemed it just to condone the delay in filing the appeal. Furthermore, the grievance raised by the appellant regarding the non-application of a relevant rule in determining the Annual Production Capacity was noted. The issue of how the Capacity should be calculated, particularly in light of one mill being closed down, was deemed significant and reserved for detailed examination during the final hearing. Consequently, the Tribunal granted exemption from pre-deposit and stayed the collection of demand pending further examination.

In conclusion, the judgment addresses the procedural aspects of appeal filing, the significance of a preamble in orders, and the application of relevant rules in determining production capacity. The Tribunal's decision to condone the delay, grant exemption, and reserve detailed examination of the Capacity calculation issue reflects a balanced approach considering the appellant's genuine mistake and the need for thorough analysis of the underlying grievance.