2005 (6) TMI 508 - AT - Central Excise

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Waiver of pre-deposit and stay of recovery.
3. Re-determination of the Annual Capacity of Production (ACP) for the appellant's Mill.

Condonation of Delay:
The judgment addresses the issue of condonation of delay in filing the appeal, which was delayed by 278 days. It is noted that the company was closed since 1998, with its assets in the possession of a creditor-bank. The impugned order was not received by the company, and they only received a copy from the Range Officer on 17-8-2004. The demand of duty was based on the ACP determined by the jurisdictional Commissioner, which was set aside by the Tribunal in a previous order. The Tribunal acknowledges that dismissing the appeal as time-barred would cause gross injustice to the assessee. Therefore, the delay in filing the appeal is condoned based on the circumstances presented.

Waiver of Pre-deposit and Stay of Recovery:
The judgment also deals with the issue of waiver of pre-deposit and stay of recovery in the case. Considering the submissions made by the appellant's counsel regarding the demand of duty and the ongoing re-determination of the ACP, the Tribunal decides to grant waiver of pre-deposit and stay of recovery. The case is remitted to the Commissioner for de novo adjudication after re-determination of the ACP of the appellant's Mill. This decision aims to provide a fair opportunity for the appellant in the proceedings.

Re-determination of ACP:
Lastly, the judgment focuses on the re-determination of the ACP for the appellant's Mill. The Tribunal allows both applications for condonation of delay and waiver of pre-deposit, setting aside the impugned order. The Commissioner is directed to re-adjudicate the case after re-determining the ACP, ensuring that the party is given a reasonable opportunity to present their case. This step aims to address any discrepancies in the earlier determination and provide a fair resolution to the appellant.