ORDER
Archana Wadhwa, Member (J)
1. I have heard Shri U.P. Moitra, Id. Consultant appearing in support of the condonation of delay application and Shri A.K. Mondal, Id. JDR appearing for the Revenue opposing the prayer.
2. As per facts on record, it is seen that the Commissioner (Appeals) vide his Order dated 22-12-2000 dismissed the appeal for non-compliance with the provisions of Section 35F of the Central Excise Act. However, before dismissing the appeal for non-compliance, the stay petition filed by the appellants was neither heard nor any orders passed on the same. After passing of the said order by the Commissioner (Appeals), the appellants vide their letter dated 14-3-2001 addressed to the Commissioner (Appeals) requested him to withdraw his order and review the same and pass an order on merits. They did not receive any response to the said letter. Thereafter, vide their letter dated 1-1-2002, they reiterated their request to review the order on merits. An identical request was made subsequently vide their letter dated 17-7-2002. In response to the above letter, they ultimately received a letter from the Superintendent (Appeals) directing the appellants to file an appeal before CEGAT, if they felt aggrieved with the order-in-appeal. Thereafter, the appeal was field within a period of 23 days (approx.).
3. I have gone through the impugned order of the Commissioner and find that he has not decided the appeal on merits but has simply dismissed the appeal for non-compliance with the provisions of Section 35F of the Central Excise Act. This order could give a reasonable belief to the appellants that since the matter has not been decided by the appellate authority on merits, he is within his jurisdiction to recall the said order and decide the matter on merits. For the said purposes, they also took action within a period of 60 days from the date of passing of the said order. There is a laxity on the part of the office of the Commissioner also which should have responded back to the said letter of the appellants clarifying that the appellate authority does not have any power to review his order. In the circumstances, I am of the view that the delay in filing of appeal, which has ultimately been filed by the appellants in the same month in which he was directed by the Superintendent to do so is on the basis of reasonable belief being entertained by them at the relevant time and there exists sufficient grounds for condonation of the same. Accordingly, I condone the delay and take up the stay petition as well as the appeal itself for final disposal.
4. As already observed, the impugned order of the Commissioner has not been passed on merits but the appeal has been dismissed without first passing order on the stay petition filed by the appellants. Accordingly, I set aside the impugned order and remand the matter to the Commissioner with direction to first pass the order on the stay petition filed by the appellants after taking into consideration the merits as well as financial position of the appellants. Appeal is thus allowed by way of remand. Stay Petition also gets disposed of.
5. Needless to say that the appellants would be given an opportunity of personal hearing before passing order on the stay petition.