2005 (4) TMI 432 - AT - Central Excise

Summary

Issues:
1. Dismissal of stay petition for non-prosecution.
2. Request for recalling stay order due to confusion and delay in filing appeal.
3. Dismissal of appeal by Commissioner (Appeals) on the ground of delay.
4. Lack of opportunity for a hearing before passing the order.

Issue 1: Dismissal of stay petition for non-prosecution
The stay petition was dismissed for non-prosecution due to the appellant's failure to appear as per the order dated 7-2-2005.

Issue 2: Request for recalling stay order due to confusion and delay in filing appeal
The appellant's advocate submitted that due to confusion, the appearance could not be made on the scheduled date. It was argued that the appeal was filed on time but in the wrong office, leading to a slight delay when transferred to the correct office. The advocate contended that the Commissioner (Appeals) should have condoned the delay and provided an opportunity to explain the situation before dismissing the appeal.

Issue 3: Dismissal of appeal by Commissioner (Appeals) on the ground of delay
After hearing both parties, the Tribunal agreed with the appellant's advocate that the appeal was filed within the time limit, albeit in a different office initially. The Tribunal found the dismissal by the Commissioner (Appeals) on the basis of delay unjustified, especially since no opportunity for condonation of delay was given. Consequently, the Tribunal recalled the stay order, allowed the stay petition unconditionally, and remanded the matter to the Commissioner (Appeals) for a decision on merits.

Issue 4: Lack of opportunity for a hearing before passing the order
It was noted that before passing the order, no opportunity for a hearing was provided by the office of the Commissioner (Appeals) to enable the appellants to explain the circumstances surrounding the delay in filing the appeal. This lack of opportunity was considered a procedural flaw, leading to the Tribunal setting aside the impugned order and directing a decision on merits by the Commissioner (Appeals).

In conclusion, the Tribunal recalled the stay order, allowed the stay petition unconditionally, and remanded the matter to the Commissioner (Appeals) for a decision on merits, emphasizing that the dismissal of the appeal based on delay was unwarranted without providing an opportunity for condonation of delay.