SPECTURM FABRICS Vs. COMMISSIONER OF C. EX., SURAT

JUDGEMENT

(1.) LD . Advocate Shri Willingdon Christian submits that appellants is a proprietary concern and the factory had remained closed for a long time and notices issued intimating of the case were not received by the appellant. The department started pressing for recovery of the arrears after appeal was dismissed, owner of the factory building took steps after he received the dismissal order of the Tribunal though owner of the factory premises to initiate corrective action. Thereafter assistance of present advocate was taken by the appellant and he submits that because of this reason the appellants were not aware of the hearing and dismissal order. He also submits that appellants have a very good case which can be made out from the facts that unconditional stay against recovery of more than Rs. 9 Crores was granted. In view of the above reasons and in the interest of justice, application for restoration of appeal may be allowed. Learned SDR submits that in the application filed for restoration also has the same address to which earlier intimations of hearing before the Tribunal and dismissal order were dispatched and this shows that appellants must have received the same and failed to take steps to appear before the Tribunal.

(2.) WE have considered the submissions made by both the sides. Ld. Advocate submitted that it is not the party who is pursuing the case even though name of the company remains same, it is the present owner of the factory premises who is taking steps so that department may not take action to auction the building etc. It is his submission that before the dismissal order was received and steps initiated by the department, the owner of the building was not aware and intimation were also not received by him. The building owner has decided to pursue the case through the earlier owner of the factory.

(3.) TAKING note of the submissions made by the advocate for intimation of hearing and the dismissal order and circumstances under which the application for restoration of appeal has been filed and in the interest of justice, we allow the application for restoration and fix the appeal for final hearing on 7 -7 -2009.