ORDER
Jyoti Balasundaram, Member (J)
1. For reasons recorded below, we dispense with the requirement of pre-deposit of duty of Rs. 4,93,063/- and waive the penalty amount of Rs. 1,04,776/- and proceed to hear and decide the appeal itself since the issue lies with a narrow compass.
2. The appellants herein are engaged in the manufacture of Texturised Polyester Yarn. According to the Department, they had wrongly availed SSI exemption under Notification No. 1/93-C.E., dated 28-2-1993 during the period from 16th March, 1995 to 24th May, 1995 which was not applicable in respect of their finished produces since the finished products manufactured by them were not specified in the table annexed to the Notification. The Deputy Commissioner confirmed the duty demand and also imposed a penalty. The adjudication order was served upon the security staff of the appellants.
3. The lower appellate authority rejected the appeal filed before him on the ground of time bar holding that “It is not a case of marginal delay. It was for the appellants to ensure that official letters etc. to the company are received by person authorised for the purpose and are attended to in time. The appeals have been filed much after the time limit. There has been inordinate delay in filing the appeal which cannot be condoned.” He dismissed the appeal on this ground without going into the merits of the case.
3. None appears on behalf of the appellant. Therefore, we heard Shri Tilak, Departmental Representative.
4. There is no rebuttal to the contention of the appellants before us that the factory was under lock out during the period when the order was served and that it was received by the Watchman appointed by the appellant. The watchman is not an authorised person to receive the adjudication order. The appellant submitted that when they had visited the factory in November, 1996, the watchman handed over the copy of the adjudication order and they filed an appeal after that. In these circumstances, we are of the view that lower appellate authority ought to have condoned the delay which was within the period condonable by him and should have considered the merits of the matter. In the absence of decision on merits, we set aside the impugned order and remand the matter to the Commissioner (Appeals) for decision on merits. He shall pass an order after giving reasonable opportunity to the appellant after being heard in-person.
5. The impugned order is set aside and the appeal allowed by way of remand.