TMI Blog2012 (5) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... lled and the appeal filed by the appellant is restored to its original number. The appellant are given the time of four weeks from the date of this order to deposit the amount, miscellaneous application and the application for condonation of delay and ROA stand disposed of - E/878/2006 (SM)(BR) - 79-82/2011/SM/BR(PB), - Dated:- 3-6-2011 - Shri Rakesh Kumar, J. Shri Viplav Sharma, Advocate, for the Appellant. Shri R.K. Gupta, SDR, for the Respondent. [Order]. The appellant had filed an appeal against order-in-appeal No. 31-32/CE/05, dated 31-3-05 passed by CCE (Appeals), Lucknow alongwith application for waiver from the requirement of pre-deposit of duty demand, interest and penalty. In their appeal memo they had given t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeal for non-compliance of the stay order have been passed ex-parte, that though in column 6 of the appeal memo, meant for the address to which the notices may be sent to the appellant, the appellant, in addition to the address of their factory, had also given the full name, address and telephone number of their advocate, all the communications were sent only at their factory address which was closed since 1998, that for this reason only the appellant were not aware of the pre-deposit/stay order No. 513/06 (SM) dated 19-5-06 directing them to deposit the amount specified therein within stipulated period and also about the final order 1132/06 (SM) dated 19-7-06 dismissing their appeal for non-compliance, that the appellant became aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under this Act or the Rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summon or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1), that he relies upon judgment of this Tribunal in the case of Kirtikumar J. Shah v. CCE, Nagpur reported in 2009 (242) E.L.T. 222 (Tri. - Mumbai) = 2011 (22) S.T.R. 246 (Tri. - Mumbai), wherein this Tribunal has held that while there is no specific provisions in the Central Excise Act, 1944 or the Rules framed thereunder prescribing period of limitation for filing restoration application, there is no justification to file restoration application at the sweet will of the appellant and since the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is on the reasons for delay in filing application for restoration, if the same is filed beyond the period of three months, while in this case there are genuine and sufficient reasons for delay in filing of the restoration application. 6. I have carefully considered the submissions of the learned Departmental Representative and perused the record. 7. I find that in column 6 of the appeal memo, which is meant for the address, at which the notice should be sent, the appellant had given two addresses, address of the factory and the address of their advocate Shri S.N. Srivastava along with his telephone numbers. All the communications to the appellant - notices regarding hearing of stay application and the notices regarding reporting compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dress and telephone numbers had also been mentioned in the column 6 of the appeal memo meant for address, at which the notice should be sent. The learned Departmental Representative has cited the judgment of the Tribunal in the case of Kirtikumar J. Shah v. CCE, Nagpur (supra), wherein it has been held that though no limitation period is prescribed for filing restoration application, it does not mean that the appellant can file restoration application at his sweet will and that since the period for filing appeal is three months, restoration application must be filed within period of three months from the date of dismissal and in the case of delay, the cause for delay must be disclosed in the application. This judgment would be applicable on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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