2005 (6) TMI 391 - AT - Central Excise

Summary

Issues:

1. Condonation of delay in filing appeals due to non-receipt of order.
2. Possession of factory by PICKUP affecting awareness of order.
3. Contention for condonation of delay by the applicant.
4. Argument by the Department regarding notice sent by speed post.
5. Lack of reply to averments by the Department.
6. Grounds for condonation of delay by the Tribunal.
7. Decision to condone the delay and schedule for hearing stay applications.

The judgment dealt with the issue of condonation of delay in filing appeals by the applicants due to non-receipt of the order. The applicants claimed they were only handed a photocopy of the order on 13-1-2005, despite the order being passed on 17th May, 2004. The factory being under the possession of PICKUP until 19th July, 2004, affected the applicants' awareness of the order, leading to the delay in filing the appeal and stay application on 10-3-2005. The Tribunal considered the circumstances and found the grounds presented by the applicants sufficient for condonation of the delay.

Regarding the possession of the factory by PICKUP, the applicants explained that their factory was under lock and key since October, 2002, and was only returned to them on 19th July, 2004. The Department argued that a copy of the order was sent by speed post and affixed on the factory gate, but the speed post returned with an endorsement indicating it was left for the appellant-company. The Department did not file any reply to counter the applicants' claims, leading the Tribunal to consider the lack of rebuttal in their decision.

The Tribunal considered the arguments presented by both parties, where the applicants contended that the delay was due to the circumstances explained in their application. The Department's Authorized Representative highlighted the notice sent by speed post and pasting on the factory gate. However, the Tribunal found that the applicants, upon receiving the photocopy of the order, promptly filed the appeal and stay application within 90 days from the receipt date, indicating a valid reason for condonation of the delay.

In conclusion, the Tribunal decided to condone the delay in filing the appeals, allowing the applications and scheduling the stay applications for hearing on 5th July, 2005. The order was dictated and pronounced in open court on 14-6-2005, marking the resolution of the issue of delay in filing the appeals due to non-receipt of the order and possession issues related to the factory.