PREM HEAVY ENGINEERING WORKS Vs. CESTAT

JUDGEMENT

(1.) We have heard Sri Suyash Agarwal for the appellant. Sri S.P. Kesarwani appears for the respondents. This Central Excise & Custom Appeal under Section 35G of the Central Excises & Salt Act, 1944, has been filed against the order dated 3-3-2005 , 2005 192 ELT 774 , by which the Custom Excise & Service Tax Appellate Tribunal, dismissed the application for condonation delay, and consequently the appeals were dismissed. The Tribunal has found that the Commissioner (Appeals) granted personal hearing, to the appellant. The matter was heard on 28-1-2004 and the order was passed by the Commissioner (Appeals) on 6-2-2004. The order was communicated to the appellant on the address given by appellant.

(2.) The appeal before the Tribunal was delayed by little less than eleven months, and in any case even if the date of knowledge i.e. 9-9-2004 (which was the date on which it is alleged that the file was inspected, and the certified copy of the order was obtained), had to be taken into consideration for condoning the delay, there was 41 days delay in filing the appeal.

(3.) The Tribunal did not find the explanation for condoning the delay, to be sufficient. The Tribunal found that the Advocate for the assessee-appellant had appeared before the Commissioner (Appeals) for personal hearing. Even at that time, if the factory was closed, the new address for correspondence was not intimated to the Commissioner (Appeals). It was submitted before the Tribunal, that the Managing Director of the appellant was the only responsible officer left in the factory, and the delay of 41 days in filing the appeal was due to sickness of the Managing Director.