2016 (3) TMI 1112 - AT - Central Excise

Restoration of appeal - seeking recall of CESTAT order - COD application was available on the date of dismissal of its appeal but was not brought to the notice of CESTAT - Held that - it is evident from the said CESTAT order itself that CESTAT had granted liberty to the appellant to apply for restoration of appeal on production of necessary clearance from the COD and had not set any time limit for doing so. Thus, there is force in the contention of the appellant that the appeal should be restored as the clearance from COD has been produced. We have perused the COD clearances and find that it clearly states that only on the penalty aspect the appellant may approach CESTAT . Thus the appeal cannot be ordered to be restored except for the penalty aspect. As regards the contention of Reveue that unacceptably long time has elapsed since the appeal was dismissed, we may observe that CESTAT in its order dated 28.08.2006 did not set any time limit to seek restoration of appeal on production of COD clearance. Therefore, in the light of the specific provision in the impugned order, the restoration of appeal can be permitted only on production of necessary clearance from the COD and, by necessary implication, only to the extent it has been cleared by the COD. Hence the restoration of appeal is allowed only in relation to penalty . Waiver of pre-deposit - Held that - it is found that the entire amount of duty stands deposited and appropriated vide the impugned order in original. Thus, the appellant has a good case for complete waiver of pre deposit of penalty and we order accordingly staying recovery of the same during the pendency of the appeal. - ROA and stay application disposed of

Summary

Issues:
1. Restoration of appeal application seeking recall of the CESTAT order dated 28.08.2006.
2. Time limit for seeking restoration of appeal.
3. Requirement of COD clearance for restoration of appeal.
4. Delay in seeking restoration of appeal.
5. Granting restoration of appeal only in relation to penalty.
6. Stay application for waiver of pre deposit of penalty.

Analysis:
1. The appellant filed a restoration of appeal application seeking recall of the CESTAT order dated 28.08.2006, stating that the COD application was available at the time of dismissal but not brought to CESTAT's notice. The appellant argued that there is no specific time limit for such restoration, citing the case of HPCL vs CCE Lucknow. The CESTAT order allowed restoration on production of necessary COD clearance without setting a time limit. The appellant's appeal was dismissed for lack of required permission to pursue the appeal, as mentioned in the ONGC vs CE, Calcutta case. However, the COD clearance granted permission only for the penalty aspect of the impugned order.

2. The Ld. DR argued against condoning the delay of almost 8 years in seeking restoration, despite no prescribed time limit. The CESTAT did not specify a time limit for seeking restoration based on COD clearance. Previous cases like HPCL vs CCE Lucknow and BHEL vs Commr. of Central Excise Bhopal allowed restoration in similar circumstances after significant delays.

3. The CESTAT order clearly stated that the appellant could apply for restoration on producing necessary COD clearance, without mentioning a time limit. The restoration was permitted only in relation to the penalty aspect, as per the COD clearance received. The argument that COD permission was no longer required based on the ONGC case was not accepted, as the specific provision in the impugned order required COD clearance for restoration.

4. Despite the delay in seeking restoration, the CESTAT allowed restoration only in relation to the penalty aspect, as per the COD clearance provided. The Registry was directed to list the appeal accordingly.

5. Regarding the stay application, the appellant had already deposited and appropriated the entire duty amount as per the impugned order. Therefore, the CESTAT granted a complete waiver of pre deposit of penalty and stayed the recovery of the penalty during the appeal's pendency. Both the restoration of appeal and stay application were disposed of accordingly.