Adf Foods Ltd vs Commissioner Of Central Excise, Nashik

(Arising out Order-in-Appeal No. AKP/66/NSK/09 dated 05.10.2009 passed by the Commissioner of Central Excise (Appeals), Nashik)

For approval and signature: Honble Mr. P.K. Jain, Member (Technical)

1. Whether Press Reporters may be allowed to see No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy Yes of the Order?

4. Whether Order is to be circulated to the Departmental Yes authorities?

ADF Foods Ltd. Appellant

Vs.

Commissioner of Central Excise, Nashik Respondent

Appearance:

Shri Vinod Awtani, CA for the appellant Shri Sanjay Hasija, Supdt. (AR) for the respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical)

Date of hearing : 13.02.2015 Date of decision : 13.02.2015

ORDER No: ..

In the impugned order the first appellate authority has dismissed the appeal on the ground of time bar. It is seen from the facts of the case that the appeal was not filed within the prescribed period of 60 days but with a delay of 2 days. The delay of 2 days is condonable by the Commissioner (Appeals). However, the same was not condoned as no application for Condonation of Delay was made by the applicants.

2. Appellants contention is that they were called for the personal hearing and they gave various submissions on merits and they did not realise that the appeal has been filed with a delay of 2 days. Moreover, the Commissioner (Appeals) did not point out about the delay aspect. The ld. Counsel for the appellant also submits that if they knew it they would have made the Condonation of Delay application.

3. Ld. Counsel for the appellant submits that the judgement of the Hon'ble High Court of Allahabad in the case of Sukhdeo Singh 2011 (23) STR 120 (All.) to press the point that the Commissioner (Appeals) was required to put him to notice before dismissing his appeal.

4. Keeping in view the facts and circumstances of the case and the fact that ld. counsel has undertaken to file the Condonation of Delay application, the appeal is allowed by way of remand. However, appellant will deposit a cost of `5000/- with the Jurisdictional Commissioner for not filing the Condonation of Delay application at the first stage within a period of four weeks from today. Further, the applicant will make a Condonation of Delay application within a further period of four weeks and thereafter, Commissioner (Appeals) would decide the Condonation of Delay application. In the event of COD application being allowed, the Commissioner (Appeals) will decide the appeal on merits.

5. Appeal is disposed of in the above terms.

(Operative part pronounced in Court)

(P.K. Jain) Member (Technical)

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