Anita Chaudhry, J. - (1.) THE instant appeal under section 35G of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994 has been preferred by the appellant against the order dated July 5, 2010 (annexure A -3) passed by the Excise and Service Tax Appellate Tribunal Principal Bench, New Delhi (for brevity, "the Tribunal") passed in Excise Appeal No. 2284 of 2009, besides orders dated November 19, 2008 and April 7, 2008 passed by respondents Nos. 2 and 3 respectively. Along with appeal, an application (Civil Miscellaneous No. 25132 -C -II of 2013) under section 5 of the Limitation Act has been filed seeking condonation of delay of 1,060 days in filing of the appeal.
(2.) IT has been averred in the application that the appellant -company took over the liabilities and assets of erstwhile M/s. Ralson Carbon Black Limited on February 23, 2011, who was a defaulter. The appellant -company was not aware of any default proceedings or the orders against the erstwhile company. However, on coming to know about the impugned proceedings, the appellant -company immediately deposited Rs. 2,50,000 in two instalments on February 3, 2013 and March 6, 2013, which was a pre -requisite for hearing the appeal before the Tribunal. Since the appellant had taken over the defaulting company, it would not be in the fitness of things if the appellant is not afforded an opportunity to put forth its case. Consequently, the application is allowed. The delay of 1,060 days is condoned. Service Tax Appeal No. 17 of 2013 M/s. Ralson Carbon Black Ltd. was declared sick unit by the BIFR. It failed to discharge its liability of service tax for the period August, 2006 to March, 2007 and failed to furnish the list of records. The Additional Commissioner ordered recovery of Rs. 9,25,353 vide the order dated April 7, 2008 and imposed a penalty of an equal amount with interest and further penalties. The appeal filed by M/s. Ralson was dismissed on November 19, 2008. The matter was taken to the Tribunal by the defaulting company. The Tribunal vide the order dated March 26, 2010 directed the defaulting Company to make a deposit of Rs. 2,50,000. The company failed to deposit the amount, therefore, the appeal was dismissed vide the order under appeal.
(3.) AS per annexures A -1 and A -2 the appellant -company took over the assets and liabilities of defaulting company. From the sequence of above events, it is evident that the Tribunal had condoned the delay for filing the appeal by the defaulting company, but dismissed the appeal on technical grounds as it failed to satisfy the pre -requisite condition of making payment of Rs. 2,50,000. Annexures A -9 and A -10 show that the appellant -company has now deposited Rs. 2,50,000. In view of the subsequent development, the lis between the parties is required to be decided on merit. The present appellant had stepped into the shoes of defaulting company after the passing of the impugned order and it must be afforded an opportunity of hearing. In view of the above, we allow the appeal and relegate the appellant to the jurisdiction of the Tribunal for decision afresh, on merits, after affording an opportunity of hearing.;