2009 (6) TMI 268 - AT - Central Excise

This application is for condonation of delay of 1042 days in filing the appeal. - when the impugned order was sent by speed post or it was pasted at the main gate of the appellant s factory under panchnama, the factory premises were under the full control of the appellant only. If their own security personnel failed to inform the Managing Director or if they fail to receive or refuse to accept the same or inform the Managing Director, when the order was brought by postman or pasted at the main gate under panchnama, the appellants cannot blame anybody else but themselves for the failure. We find that the appellants have not been able to make out a case for condonation of delay and have not shown sufficient cause for the delay which has occurred in filing the appeal. - COD Application has been rejected

Summary

Issues: Condonation of delay in filing appeal due to factory attachment and failure to receive the order-in-original.

Analysis:
1. Condonation of Delay Application: The appellant filed an application seeking condonation of a 1042-day delay in filing the appeal due to the attachment of the factory by the Assistant Commissioner, Central Excise. The appellant claimed that they did not receive the Order-in-Original passed on 6-12-2005 as it was pasted at the main gate by the Revenue, and the Managing Director stationed in Haryana was not informed by the security personnel. The appellant cited a Supreme Court decision emphasizing a liberal approach for condonation of delay.

2. Respondent's Submission: The JDR representing the respondent contended that the Order-in-Original was sent to the appellant by speed post on 14-12-05 and later pasted on the factory's main gate on 20-2-06 under a panchnama after being returned by the party. The delay in filing the appeal was attributed to the appellant's failure to accept the order.

3. Tribunal's Evaluation: The Tribunal examined both submissions and noted that the factory was only restricted from being transferred or charged for specific purposes in the order issued by the Revenue in February 2005. The factory's operations were not impeded, and the appellant had control over the premises until it was sealed by the bank in November 2006 due to non-payment of dues. The Tribunal found that the delay in filing the appeal was solely due to the appellant's failure to receive or accept the order, and their security personnel not informing the Managing Director. Consequently, the Tribunal concluded that the appellant failed to establish sufficient cause for the delay and rejected the condonation of delay application.

4. Disposal of Appeal: As the condonation of delay application was dismissed, the Tribunal disposed of the appeal and stay application by rejecting them as well.

This judgment highlights the importance of demonstrating sufficient cause for delay in filing an appeal and emphasizes the responsibility of the appellant to ensure receipt of official communications, even in cases of factory attachment.