ORDER
V.K. Agrawal, Member (T)
1. This is an application by M/s. Gulf Paints Corporation for condonation of delay in filing the appeal.
2. Shri Abhishek Jain, learned Advocate, submitted that the applicants have filed the present appeal against the order-in-appeal No. 72/2000 dated 3.3.2000 passed by the Commissioner (Appeals); that the said order was received by the applicants only on 8.7.2004 and they had filed the appeal on 26.7.2004; that no notice of hearing was given to the applicants and they were under the bona fide impression that in view of the letter dated 24.3.1993, issued by the office of the Principal Collector (Central Excise), New Delhi, the matter must have been dropped; that on 8.7.2004, they received a letter along with a copy of the order from the Superintendent demanding the quit that on perusal of the impugned order received by them on 8.7.2004, they realised that the appeal, filed by them against the Assistant Commissioner’s order dated 13.10.1995, had been dismissed by the Commissioner (Appeals) without any personal hearing and in gross and blatant violation of the principles of natural justice; that as the order was received by them on 8.7.2004, the appeal filed by them on 26.7.2004 is within time limit specified in Section 35B of the Central Excise Act and, thus, there is no delay in filing the appeal; that they had filed the present condonation of delay application as a matter of abundant caution and the bring to the notice of the Tribunal the circumstances in which they have received the copy of the impugned order. The learned Advocate, further, submitted that they had to close down their unit in terms of the order of the Supreme Court of India in the case of M.C. Mehta v. Union of India by which the Supreme Court ordered closure of Industrial Units in Non conforming Areas because of pollution; that the appellants have also intimated their new address to the Assistant Collector of Central MOD-II, Haus Khas, New Delhi. He relied upon the decision in the case of Dee Pharma Ltd. v. CCE, Ghaziabad wherein it has been held that if the factory of the assessee is closed, the relevant date for communication of adjudication order is the date when the assessee received the adjudication order. He, finally, submitted that the appellants have a strong case on merit and the issue involved is squarely covered by the decision of the Larger Bench and other judgements of the Tribunal.
3. Opposing the prayer, Sh. H.C. Verma, learned D.R., submitted that the factory of applicants was closed in November, 1996 whereas the appeal, itself, was filed by them in the beginning of 1996; that as per the facts narrated in the application for condonation of delay, the Commissioner (Appeals) had dimissed their Stay Application vide order dated 16.2.1999 against which they had gone in Writ Petition in the High Court of Delhi; that the Delhi High Court had remanded the matter vide Order dated 2.11.1999 to the Commissioner (Appeals) with the direction to decide the Stay Application afresh after giving an opportunity of hearing to the appellants. He, therefore, contended that it is apparent from the facts that all these things have taken place much after the factory of the appellants had been closed on account of order passed by the Supreme Court in the case of M.C. Mehta (supra); that in spite of closure of their factory and remand of their matter by the High Court, they have not intimated their new address to the Commissioner (Appeals); that the Commissioner (Appeals), had fixed the matter for hearing on 11.10.1999, 2.11,1999 and 10.12.1999 and no one had appeared for personal hearing. In view of these facts, the applicants have not made out any case for condonation of delay in filing the appeal; that the facts in the case of Dee Pharma Ltd. (supra), are completely different from the facts in the present matter and, therefore, the said decision is not applicable.
4. We have considered the submissions of both the sides. The impuged order was passed by the Commissioner (Appeals) on 13.3.2000 whereas the appeal has been filed on 26.7.2004 i.e. after four years. As per the provisions of Section 35B of the Central Excise Act, the appeal before the Appellate Tribunal is to be filed within three months from the date on which the order is communicated to the party preferring the appeal. As the applicants had not intimated the changed address to the Commissioner (Appeals), the impugned order was communicated to them at their old address. We find force in the submissions of the learned D.R. that their plea that they were not aware of the proceedings before the Commissioner (Appeals) on account of closure of their factory, is not correct inasmuch as their factory had been closed in 1996 whereas they themselves have filed the Writ Petition in Delhi High Court against the dismissal of the Stay Application by the Commissioner (Appeals) and the Hon’ble Delhi High Court had remanded the matter to the Commissioner (Appeals). For the same reason, it is not acceptable that they were under the bona fide impression that the matter must have been dropped in view of the letter dated 24.3.1993 issued by the principal Collector (Central Excise), New Delhi. The applicants have, thus, not advanced any sufficient case for condonation of delay in filing the appeal. We, therefore, reject their application for condonation of delay. Consequently, the appeal, filed by them, is also dismissed. Operative Part of order pronounced in open court on 20.9.2004.