TMI Blog2001 (8) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... d of power or steam in the hot air stenter. Being independent processors, the appellants filed declaration for determination of annual capacity of their stenter as per the relevant rules. On receipt of the verification report the Commissioner vide order dated 16-4-1999 and corrigendum dated 1-7-1999 determined the annual capacity of the stenter. But order of the Commissioner was challenged by the appellants when they were directed to pay the differential duty at the rate of 12.8% before the Tribunal. The Tribunal set aside the order and sent back the matter to the Commissioner vide order dated 30-8-1999 for redetermination of the annual production capacity after affording opportunity of hearing to the appellants. Thereafter, the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her hand, the learned JDR has argued that no sufficient ground or cause had been explained by the appellants for inordinate delay of ten months in filing the appeal. Mere closure of the factory by them could not be taken as sufficient cause for condonation of delay as the appeal was to be filed by the company and the Managing Director of the company Shri B.S. Chowdhary, who had filed the present appeal, could easily consult the Counsel and filed the appeal in time. Therefore, the prayer of the appellants for condonation of delay deserves to be disallowed. 7. We have heard both the sides and gone through the record. 8. Admittedly the impugned order of the Commissioner determining the annual production capacity of the stenter installed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability resulting from illness or insufficiency of funds, had been also pleaded by him in his affidavit for not filing the appeal within the stipulated time. He has only in his own affidavit reiterated the grounds of closure of the factory w.e.f. 29-10-1999 by the company, non-availability of any employee or staff after 15-12-1999 and taking over of the company by the new management w.e.f. 26-12-2000. But, appeal was required to be filed much before 29-12-2000. 9. The ratio of the law laid down in Pratap Steel Rolling Mills v. C.C.E., Chandigarh - 2000 (121) E.L.T. 435 referred by the Counsel, is not attracted to the facts of the present case. In that case the appeal was filed before the Commissioner within the further period of three mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the appellants, as ruled by Larger Bench of the Tribunal in Sangam Processors Bhilwara Ltd. v. C.C.E., Jaipur - 2001 (127) E.L.T. 679 (T-LB) = 2001 (42) RLT 429, and so pleaded by the appellants in the present application, itself too, in our view does not constitute a sufficient cause for condonation of delay of ten months. In fact the very appeal against the impugned order of the Commissioner (Appeals) had been filed by the appellants after the rendering of the judgment of the Larger Bench of the Tribunal in above said case, on 4-1-2001, as earlier to that, the legal position was not so and galleries were taken into account while determining the annual production capacity of the stenter. The appellants after the change in law, on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact want to take advantage of the change in law which had taken place on account of the Tribunal s Larger Bench decision in Pratap Steel Rolling Mills case (supra). But the order passed against them had already become final. 13. The contention of the Counsel that the appellants did not stand gained anything by filing the appeal late is also wholly misconceived in the light of the discussion made above. Here, the appellants deliberately remained silent, inactive and did not challenge the impugned order of the Commissioner initially within the stipulated time. They virtually accepted the correctness of the impugned order and elected to file the present appeal only after pronouncement of the Larger Bench decision in Sangam Processors B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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