Ajay Kumar Mittal, J. - (1.) Application is allowed and the delay in refiling the appeal is condoned. C.M. No. 26856-CII of 2011 Allowed as prayed for. C.M. No. 26854-CII of 2011
(2.) This is an application under section 35G of the Central Excise Act for condonation of 604 days' delay in filing the appeal.
(3.) Before deciding the said application, it may be advantageous to notice the facts. The assessee is engaged in the manufacture and export of nylon, polyester/blended yam. As per the provisions of the export import policy and customs notification dated June 3, 1997, the assessee could import capital goods and raw material without payment of duty. It was required to utilise the imported goods and raw material in the manufacture of goods meant for export. The assessee imported yarn without payment of customs duty. The appellant was granted permission by the Assistant Commissioner of Central Excise to get the yarn processed from outside job workers who cleared 1,03,591.200 kg. yarn to various job workers and received fabric from them and sold the same to M/s. Dewas Fabrics Limited, M/s. Ganesh Overseas and M/s. Shiv Shakti Industries as deemed export. The adjudicating authority after investigation issued a show-cause notice dated September 5,1996 to the assessee alleging diversion of imported material and raised a demand of Rs. 83.81 lakhs. The adjudicating authority vide the order dated April 15, 2008 (annexure A-1) held the assessee liable to pay duty on imported yarn. Regarding the question of raising demand twice, the adjudicating authority held that the demand in the other show-cause notice had been raised on different grounds. Feeling aggrieved, the assessee filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (in short "the Tribunal"). Along with the appeal, a stay application was also filed. On September 10, 2008 (annexure A-3), the Tribunal directed the appellant to deposit full amount of duty, i.e., Rs. 83.81 lakhs and 50 per cent. penalty within a period of eight weeks. On having failed to comply with the order, the Tribunal vide the order dated November 18, 2008 (annexure A-4) dismissed the appeal on the ground of non-compliance of stay order. Hence, the present appeal.;