TRIVENI ALLOYS LTD. Vs. CCE

JUDGEMENT

(1.) IN this petition for condonation of delay in filing appeal No. E/2545/98, the appellants have vide their affidavit on record submitted that as against their claim that their induction furnace could not produce more than 7 M.Ts. per heat, the Assistant Commissioner vide letter dated 30.9.1997 informed the appellants that the Commissioner had been pleased to fix the said capacity at 18 M.Ts and therefore, the annual capacity as 57,600 M.Ts. The appellants on receipt of the said letter, represented that they required a speaking order preceded by a show -cause notice on this issue. The said letter had been issued even without hearing them. However, neither did they receive any response to their representation over a long period of time nor did they receive a speaking order in the matter after following the various principles of natural justice which included the basic reasons which had prompted the department to reject their claim of 7 M.Ts per heat and instead to fix the capacity as 18 M.Ts. per heat, under Section 3A of the Central Excise Act, 1944.

(2.) HEARD Sri R. Raghavan, learned advocate for the appellants, who submits that in view of the above facts on record, the appellants were under bona fide belief that as the said letter was a mere letter which was not even issued by the Commissioner himself, who alone is the competent authority to fix the said capacity under Section 3A ibid, and since the request for a speaking adjudication order from the Commissioner was still pending with the department, therefore, the said letter could not be agitated before the appellate authority in appeal, it not being an order passed by the competent authority sitting on adjudication process. The learned advocate submits that however, at a later date, the appellants chanced to come across a decision of the Tribunal in the case of Stag Steel Ltd. v. CCE as reported in , wherein the Tribunal had considered the appeal against a similar letter issued without following the principles of natural justice on the same matter of fixing of annual capacity and had remanded the matter back to the original authority. On being aware of this decision, they came to the conclusion that the remedy may be available before the Tribunal against the said letter and therefore, they decided to take a chance and filed the subject appeal, hence the delay in filing the appeal. In view of the above facts, they request for condonation of the said delay and the application of the ratio of the above decision in their appeal. The learned advocate also cites the decision of the Tribunal in the case of Amar Woollen Mills v. CC as reported in , wherein a situation was considered pertaining to the issue of operative part of an order by endorsing the same on a Bill of Entry, instead of giving a proper speaking or reasoned order. It was held therein that since the certified copy of the adjudication order was supplied only at a much later date, therefore, the delay in filing the appeal did not arise, as the relevant date would be the date of communication of the speaking order. The learned advocate submits that in this case, as for today also no speaking order has been issued and therefore, there is no delay in filing this appeal, which needs to be condoned in terms of the said decision.

(3.) WE have carefully considered the rival submissions and records of the case. We have perused the decision of the Tribunal in the case of CC v. Union Carbide (I) Ltd. (supra) and find that the facts considered in that case stand distinguished from the facts of this case, inasmuch as that there though an adjudication order by the Appellate Collector had been passed, the same had not been received by the Executive Collector, who was also awaiting the decision of the Tribunal on a similar issue. In the present case, presently no speaking order has yet been passed and secondly no one was awaiting any decision of the Tribunal. The appellants in their affidavit have clearly submitted that they chanced to see the decision of the Tribunal which is quite different from awaiting knowingly of the decision of the Tribunal on a pending issue. Therefore, the said decision needs to be distinguished on facts with respect to the present case under consideration.