ORDER
Lajja Ram
1. M/s Sun Rise Processors had filed the present appeal being aggrieve with the order-in-original dated 20.4.2000 passed by the Commissioner of Central Excise-II, Chandigarh. As stated by the appellant themselves in Form EA-3 against column no. 3, the order was received by them on 28.4.2000.The appeal was received in the Registry on 7.2.2001 after the expiry of the statuary period of limitation. Along with the appeal, the appellants have filed the application for condonation of delay and the application for condonation of delay and the application is extracted in full-
1. We are engaged in the processing of man made fabrics with the aid of power, steam & hot air stenter.Our’s is a very small factory and we were working in very tight financial conditions. The factory was finally closed on 1.3.99.Due to acute financial crisis the factory remained closed till 18.8.99 when the Registration Certificate was surrendered. The factory was worked only for 11/98 to 2/99. Even during this time we have suffered huge losses.
2. We are submitting herewith a photocopy of panchnama dated 1.3.99 in which the stenter was got sealed.Further was are enclosing herewith a application of surrender of Registration Certificate. The Commissioner Central Excise Commissionerate determine the capacity under compounded Levy provisions vide provisional order n.IV(16)FAB/38/TECH-II/98/660-62 dated 30.12.1999. In the said provisional order the capacity has been fixed without taking into consideration the galleries attached to the stenter. However the Commissioner determined the capacity finally vide order no.IV(16)FAB/16/TECH-II/ 98/1084-88 dated 20.4.2000 in which the length of galleries has been included as 95 cms. Accordingly the annual capacity has been increased vide 0.311 chamber when this final order was issued the factory has been closed and we are passing through serious financial crisis. The said capacity order escaped our attention.
3. The Hon’ble Tribunal has held in the case of Sargam Processors Bhilwara Ltd. Vs. CCE reported as 2001(42) RLT 429 that the length of galleries is not includable in the length of chamber for the purpose of compounded levy under Section 3A. A copy of the said judgment is enclosed herewith for ready reference. As such it is requested that on merits the said order of the Commissioner is eligible to be vacated.The delay has occurred on account of circumstance beyond our control and we were out of the business and were not aware about the fact of galleries being excluded from the capacity by the order of the Tribunal. Now it has come to our knowledge and it is requested that the delay in submitting appeal may be condoned and consequently the order of Commissioner under which the galleries were included in the capacity may be set aside to the extent of said galleries.
2. When the matter was called, no one appeared for the appellants. They have prayed for decision on merits and have relied upon the Tribunal’s decision in the case of Sangam Processors Bhilwara Ltd. vs CCE, Jaipur, 2001 (42) RLT 429 (CEGAT-LB).
3. Shri Mewa Singh, SDR, submits that no ground have been given in the application for condonation of delay for such a delay of over eight months. The only could not be a ground for delay in filing the appeal. The application is also not accompanied with any affidavit.
4. After hearing the learned SDR and going through the record, we find that there were no sufficient ground for delay in filing the appeal. The application for condonation of delay is dismissed. As a result, the appeal of the appellants is also dismissed as time-barred. As the appeal is dismissed, The stay application is also dismissed.
(Dictated & pronounced in the open court)