ORDER
P.G. Chacko, Member (J)
1. One of the applications before us is for condonation of the delay of the appeal and remaining one is for waiver of predeposit and stay of recovery in respect of the duty and penalty amounts. After examining the records and hearing both sides, we note that the impugned order was passed on 22.03.2005 but, it is asserted by the appellants that the order was received by them only on 20.09.2005. It is submitted that a copy of the order was delivered to them at their own request. The appeal was filed on 15.12.2005. A report of the Deputy Commissioner in the office of the Commissioner of Central Excise, Salem, which is available on record, shows that the Commissioner’s order was despatched to the party through a divisional officer on 28.03.2005 and the same was served on them by way of affixture under Section 37C(1)(b) of the Central Excise Act on 18.04.2005. According to the appellants, the appeal is within the prescribed period of limitation reckoned with reference to 20.09.2005. According to the respondent, it is delayed by 150 days with reference to 18.04.2005.
2. It is submitted by learned Consultant that, after the Commissioner fixed hearing in the case for 03.02.2005, nothing has been heard from him. The party is said to have been taken by surprise when they were told that an order of adjudication had been passed against them by the Commissioner. Learned Consultant further submits that parallel proceedings in relation to an abatement claim filed by the appellants arc also pending with the Commissioner. It is submitted that, though a copy of the High Court’s judgment in Beauty Dyers case (wherein the Annual Capacity Determination Rules were struck down by the Hon’ble Court) was supplied to the Commissioner along with written submissions as early as on 07.01.2002 in the abatement-related proceedings, learned Commissioner did not take notice of the same. Had he taken notice of the High Court’s ruling, he would not have passed the impugned order. On these facts, it is submitted that no prejudice will be caused to the department if the delay of appeal is condoned. Adding to the facts of the case, learned Consultant submits that the appellants’ factory remains closed since December, 1998. However, he fairly concedes, the correct postal address was not communicated to the Commissioner at any point of time. Learned SDR submits that the service of the impugned order on the appellants by way of affixture on the factory premises under Section 37C(1)(b) of the Act is a fact evidenced by a mahazar (produced). That was valid service of the order and, therefore, the appellants are liable to explain the delay of 150 days involved in the filing of the appeal. We have already noted the circumstances placed before us by learned Consultant and are inclined to accept the same. The Hon’ble High Court’s judgment in Beauty Dyers case 2004 (166) E.L.T.27 (Mad.), which struck down the Annual Capacity Determination Rules as unconstitutional, was placed before the Commissioner by the party as early as in January, 2002. Had the learned Commissioner applied his mind to the High Court’s ruling, as rightly pointed out by learned Consultant, he would not have passed the impugned order demanding duty from the appellants under Compounded Levy Scheme. It is this aspect which has weighed with us in condoning the above delay. The delay condonation application stands allowed.
3. In view of the Hon’ble High Court’s ruling and after examining the facts of this case and after hearing both sides, we are inclined to dispose of the appeal itself finally at this stage. Accordingly, after dispensing with predeposit, we proceed to deal with the appeal.
4. In the impugned order, learned Commissioner has demanded duty from the appellants under the Compounded Levy Scheme. Under this scheme as envisaged by the Central Government, the appellants were liable to pay duty of excise on their products on the basis of Annual Capacity of Production (ACP, for short) determined by the Commissioner. The ACP was determined under the ACP Determination Rules. It was those Rules which were struck down by the High Court in Beauty Dyers case. The Hon’ble High Court’s judgment is already before the Commissioner. We are of the view that he should pass a fresh order after considering the ruling of the High Court.
5. Learned Consultant has also referred to our Final Order No. 1395/2005 dated 29.09.2005 in Appeal No. E/637/2001 (Raji Thangam Textiles Ltd. v. Commissioner of Central Excise, Coimbatore). Learned Commissioner is at liberty to consider this and other decisions which might be relied on before him by the party.
6. The impugned order is set aside and this appeal is allowed with a direction to the jurisdictional Commissioner for passing a fresh order in view of the observations made herein, in accordance with law, after giving the party a reasonable opportunity of being heard.
(Dictated and pronounced in open court)