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2013 (12) TMI 586 - AT - CustomsRestoration of appeal - Clearance from committee of disputes - Refund claim rejected on the ground of unjust enrichment - Held that - Revenue has filed this appeal on 20-7-2008 which was dismissed by this Tribunal on 30-12-2009 holding that the Revenue has not applied for clearance from COD, therefore, obtaining of COD clearance does not arise. Therefore, the appeal was dismissed for want of COD clearance. Admittedly, when the application for restoration of appeal is filed, again clearance of COD was not obtained. The reliance by the learned SDR is not applicable to the facts of this case as when the order was passed dismissing the appeal for want of COD clearance and at the time of filing the application for restoration of appeal, the order in the case of ONGC (1991 (10) TMI 58 - SUPREME COURT OF INDIA) was in operation wherein it was held that to file an appeal before CESTAT, COD clearance is required. If the application for restoration of appeal is allowed, which was dismissed following the decision of ONGC for want of clearance from COD, then all the appeals dismissed prior to the decision of Electronic Corporation of India (2011 (2) TMI 3 - Supreme Court) shall deserve for restoration, which will certainly an abuse of law - Decided against Revenue.
Issues:
1. Application for restoration of appeal filed by the Revenue. 2. Requirement of obtaining clearance from Committee on Disputes (COD). 3. Applicability of previous judgments on the current case. 4. Justification for dismissing the application for restoration of appeal. Analysis: 1. The Revenue filed an application for restoration of appeal, citing the need for COD clearance, as per a previous Tribunal decision. The application explained that the file was misplaced due to heavy workload, but steps were taken to trace it and apply for COD clearance. The Revenue sought restoration based on the COD clearance application. 2. The learned SDR argued that COD clearance was not necessary, referencing a Supreme Court judgment regarding Electronic Corporation of India Ltd. The SDR also mentioned that a previous Supreme Court judgment had recalled the order in the ONGC case, which was relevant to the current situation. The argument was made to support the restoration of the appeal without COD clearance. 3. On the other hand, the respondent's Advocate contended that the application for restoration lacked specific details about the file misplacement and retrieval. The Advocate highlighted that the appeal had been dismissed earlier when the ONGC case was applicable, questioning the validity of the restoration application based on changed circumstances. 4. After considering the arguments and reviewing the records, the judge found that the appeal was initially dismissed for lack of COD clearance. The judge noted that at the time of the restoration application, the ONGC case's requirement for COD clearance was in effect. The judge emphasized the importance of following the prevailing Supreme Court decisions and concluded that granting restoration without COD clearance would set a precedent for similar cases, constituting an abuse of law. Consequently, the judge dismissed the application for restoration of appeal by the Revenue.
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