2010 (2) TMI 1037 - AT - Central Excise

Summary

Issues: Application for restoration of appeal and stay application dismissal.

Analysis:
1. The appellant filed an application for restoration of appeal and stay application, which were dismissed on different dates. The appellant's advocate was unable to appear before the Tribunal on one occasion due to personal matters at another court, resulting in the dismissal of the stay application. The appeal was later dismissed for non-compliance under Section 35F of the Central Excise Act, 1944.

2. The appellant argued that the absence of the advocate on the first date was genuine, and they were unaware of the dismissal of the stay application until the second date of the hearing. The Commissioner (Appeals) had dismissed the appeal due to a delay in filing beyond the prescribed period, although justifiable reasons for the delay were presented. The appellant sought restoration of the appeal and stay application to present their case on merit.

3. The Departmental Representative contended that the requests for adjournment and waiver were not genuine, leading to the dismissal of the stay application. Since the appellant did not deposit the required amount, the appeal was liable for dismissal. The Department argued against the restoration of the appeal based on these grounds.

4. The Tribunal acknowledged the appellant's difficulty in ascertaining the next hearing date after the dismissal of the stay application. Despite the appellant's responsibility to confirm the hearing date, the Tribunal found a sufficient cause for the non-appearance of the advocate. The appeal was against the Commissioner (Appeals) decision to reject the appeal for filing beyond the 90-day limit, which the Commissioner could only condone for an additional 30 days.

5. The Commissioner (Appeals) had noted justifiable cause for the delay but did not specify any reasonable grounds for condonation. The appellant's argument of the General Manager's illness as the reason for delay was deemed insufficient, considering the continuous operations of the appellant's other activities. The Tribunal concluded that the sickness of the General Manager was not a valid reason for condonation of delay and that no interference with the decision was warranted on merit.

6. Consequently, the Tribunal dismissed the application for restoration of the appeal, citing the lack of sufficient cause for the delay and the absence of a valid case for interference on merit. The appeal and stay application remained dismissed based on the presented arguments and circumstances.