2005 (2) TMI 724 - AT - Central Excise

Summary

Issues:
Delay in filing appeal, interpretation of "without prejudice" in Commissioner's order, applicability of Code of Civil Procedure, condonation of delay in filing appeal.

Analysis:
1. Delay in filing appeal: The appellants sought condonation of a 2376-day delay in filing Appeal No. E/1389/2004 against the Commissioner's order finalizing their Annual Capacity of Production (ACP). They argued that the order's finality should be calculated from the date the High Court upheld the validity of Rule 5 of the ACD Rules, on 5-3-2003. However, the Tribunal found that the order was appealable under Section 35B of the Central Excise Act and the appellants failed to challenge it promptly.

2. Interpretation of "without prejudice": The appellants heavily relied on the expression "without prejudice" in the Commissioner's order to argue that they could challenge the order at any stage during the proceedings. They cited the Supreme Court's decision in Superintendent of Central Excise v. Pratap Rai to support their interpretation. However, the Tribunal differentiated the facts of the present case from Pratap Rai's case and concluded that the order's finality was not contingent on the outcome of the Writ Petitions.

3. Applicability of Code of Civil Procedure: The appellants contended that they could challenge the ACP order at any time during the proceedings pursuant to demand notices based on the order. They argued that the Code of Civil Procedure provisions supported this stance. However, the Tribunal rejected this argument, stating that no such provision applied to quasi-judicial proceedings under the Central Excise Act.

4. Condonation of delay in filing appeal: The Tribunal highlighted previous cases where the Supreme Court took a strict view on condonation of delay, emphasizing the need for a satisfactory explanation. It cited U.O.I. v. Tata Yodogawa and Collector v. Bentex Motor Control Industries as examples where delay was not condoned due to insufficient explanations. In contrast, the delay in Kanishk Steel Industries was condoned as the party had a valid reason for the delay, unlike in the present case.

In conclusion, the Tribunal dismissed the application for condonation of delay and subsequently dismissed the appeal due to the lack of sufficient cause for the prolonged delay in filing the appeal against the Commissioner's order.