JUDGMENT 1. - None appears for the respondents despite service. 2. The learned counsel for the appellant - ESI Corporation submitted that the respondent A.W.1 Ashok Kumar - employer in his statement had clearly admitted vide para 11 of the impugned order that from January, 1997 to November, 1997, only 8 employees worked in the establishment, whereas from the month of December, 1997, 11 employees worked. He submitted that therefore, since in the calendar year 1997 even if for one month, more than minimum number of employees provided in the Act, namely, 10 employees worked in the said establishment, the ESI coverage for entire year for all the employees will have to be done as per Section 2(12)(a) of the Act which defines the term "factory", which is reproduced hereunder: "2(12) "factory" means any premises including the precincts thereof- (a) whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on." 3. Nobody appears on behalf of the respondent to oppose these submissions despite service. 4. From a perusal of the impugned order dated 20.12.2006, it appears that even though the said statement of A.W.1 Ashok Kumar is referred in para 11 of the order, while discussing the coverage of establishment under the provisions of ESI Act, the presence of employees over 10 has not been discussed by the learned Court below while deciding the objections/ application of the employer under Section 75 of the ESI Act. Therefore, while holding that the establishment is not so covered and directing the refund of the ESI contribution to the said establishment, the learned Court below has not considered the effect of admission of A.W.1 Ashok Kumar in his statement that in the month of December, 1997 11 employees were working in the establishment. Provisions of Section 2(12)(a) of the Act clearly stipulates that on any day of the calendar year, if number of employees has exceeded 10, then the establishment will be covered under the ESI Act. 5. In view of this statement and legal position, the application under Section 75 of the Act deserves fresh consideration by the learned court below. 6. Provisions of Section 2(12)(a) of the Act clearly stipulates that on any day of the calendar year, if number of employees has exceeded 10, then the establishment will be covered under the ESI Act. 5. In view of this statement and legal position, the application under Section 75 of the Act deserves fresh consideration by the learned court below. 6. Accordingly, this appeal is allowed and setting aside the order dated 20.12.2006, this matter is restored back to the ESI Court, Pali for decision a fresh in accordance with law.Appeal Allowed. *******