2012 (5) TMI 297 - AT - Central Excise

Application for restoration of their appeal - condonation of delay in filing restoration application - petition for stay on recovery - appellant plead that the notices for hearing and the orders passed by the Tribunal dismissal their appeal were never received by them which is clear from the fact that all the communications were returned undelivered by the postal authorities Held that - appellant for delay in filing of application for restoration of appeal are genuine and hence delay is condoned, appeal for non-compliance to the provisions of Section 35F is recalled and the appeal filed by the appellant is restored to its original number. The appellant are given the time of four weeks from the date of this order to deposit the amount, miscellaneous application and the application for condonation of delay and ROA stand disposed of

Summary

Issues:
Appeal against order-in-appeal, application for waiver, non-compliance of stay order, restoration of appeal, condonation of delay.

Analysis:
The appellant filed an appeal against an order-in-appeal along with an application for waiver from pre-deposit. Despite providing their advocate's address, notices were sent to the factory address, which was closed. An ex-parte stay order was passed when the appellant failed to appear. The appeal was later dismissed for non-compliance. The appellant sought restoration of their appeal, citing genuine reasons for non-appearance. The Departmental Representative opposed restoration, arguing that notices were deemed served as per Section 37C. The Tribunal noted that all communications were returned undelivered, indicating the factory was closed. The appellant claimed awareness of the dismissal only upon property attachment in 2011. The Tribunal found the reasons for delay genuine and restored the appeal, granting time for deposit and waiving the balance amount subject to evidence of prior payment.

The appellant's advocate argued that communications were sent only to the closed factory address, causing unawareness of orders. The Departmental Representative relied on Section 37C for deemed service of notices. The Tribunal observed that all notices were returned undelivered, indicating non-delivery. The appellant became aware of the dismissal only upon property attachment in 2011. The Tribunal found the appellant's reasons for delay genuine and restored the appeal, granting time for deposit and waiving the balance amount upon evidence of prior payment.

The Departmental Representative contended that notices were deemed served as per Section 37C, despite being returned undelivered. The Tribunal found the appellant's claim of non-receipt of notices credible, given the returned communications. The appellant's delay in filing restoration application was deemed genuine, leading to the restoration of the appeal. The Tribunal granted time for deposit, waiving the balance amount upon proof of prior payment to the Central Excise authorities. Compliance was required to be reported by a specified date.

In conclusion, the Tribunal considered the appellant's genuine reasons for non-appearance and delay in filing the restoration application. The appeal was restored, with directions for deposit and waiver of the balance amount subject to proof of prior payment. Compliance was mandated by a specified date for further proceedings.