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TMI Blog2015 (10) TMI 2279X X X X Extracts X X X X X X X X Extracts X X X X ..... to be covered by the judgments to which we shall make a reference hereinafter. 3. The petitioner is a manufacturer registered with the Central Excise and due to financial problems, it had filed an application with the Board for Industrial Finance and Reconstruction (BIFR) set up under the Sick Industrial Companies (Special Provisions) Act, 1985, to rehabilitate the petitioner-company in the year 2002. This Board was considering various schemes submitted by the company, but eventually concluded that the company is not viable. It, therefore, recommended winding up of the petitioner-company in the month of November, 2006. In January, 2007, that was treated as an application by this Court for winding up of the petitioner-company. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have found that a single Member of the Zonal Branch, after the appeal was placed before her, passed the following order: "The appellants have complied with the stay order. Nobody is present on behalf of the appellants. However, I accordingly heard learned DR and has gone through the impugned order. 2. It is seen that Commissioner (Appeals) has dismissed the appeal as barred by limitation on the ground that he has no powers to condone the delay beyond the condonable period prescribed in the statute. I find law is no more res-integra and stands settled by following decisions : 1. Maithan Ceramic Limited Vs. C.C.E. Jamshedpur [2002 (145) E.L.T. 394 (Tri.- LB)] 2. Raja Mechanical Company Pvt. Ltd. Vs. C.C.E. [2002 (144) E.L.T. 36 (De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, but that was dismissed. Secondly, the Tribunal found that the appeal was dismissed by the Bench on finding that the First Appellate Authority has no power to condone the delay beyond the period within which the assessee has to file an appeal before the Appellate Authority under section 35 of the Central Excise Act, 1944. The Tribunal found that whether liquidation or otherwise, the ratio of the judgment of the Hon'ble Supreme Court in the case of M/s. Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur reported in 2008 (221) Excise Law Times, 163, SC , will apply in this case. The First Appellate Authority in the impugned order clearly recorded that in the presence of the security guard of the respondent, the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. That was challenged before the Commissioner (Appeals) Central Excise and Customs, Vapi. Before the Commissioner, the argument was that the appeal is not barred by limitation as the petitioner had no knowledge of the order of the Joint Commissioner. It was in winding up inasmuch as the BIFR had recommended in the month of November, 2006 / January 2007, that the petitioner be wound up. This recommendation / reference of the BIFR was treated as a suo moto petition for winding up by this Court and that is how the proceedings commenced and this Court eventually passed the order of winding up. It is during this time that it is stated that all the operations and activities at the factory came to a standstill. There was closure notice and the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as dismissed. Secondly, I find that the appeal was dismissed by this Bench on a finding that the First Appellate Authority has no power to condone the delay beyond the period within which the assessee has to file appeal before him as provisions of Section 35 of the Central Excise Act, 1944. In my view, whether liquidation or otherwise, the ratio of the judgment of the Apex Court in the case of M/s. Singh Enterprises, will apply in this case. The First Appellate Authority in the impugned order clearly recorded that in the presence of the security guard of the company, the impugned order was pasted on the gate of the factory, and the appeal was filed almost after 6 months. 5. In view of the foregoing I do not find any reasons in adjourning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside and recalled by this Court. In such circumstances, the petitioner deserves an opportunity to satisfy the Tribunal about the correctness of the view of the Commissioner (Appeals). Therefore, when we set aside such orders of the Tribunal, we should not be taken to be laying down any precedent for being applicable in future cases.
12. In the light of the above discussion, the Writ Petition succeeds. It succeeds in the above terms. However, while we give a opportunity to the petitioner to satisfy the Tribunal on the merits of its appeal, we impose condition of payment of costs quantified at Rs. 25,000/-. The costs will be condition precedent and to be paid to the respondent within four weeks from today. X X X X Extracts X X X X X X X X Extracts X X X X
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