2014 (9) TMI 556 - HC - Central Excise

Stay application - COD clearance not obtained - Appeal dismissed by tribunal - Held that - Public sector undertakings are not above the law, nor above the citizen and in this matter, the order was passed against the petitioner-assessee long back and its appeal was dismissed as back as on 19-12-2008. For the reasons best known to the revenue, they did not choose to recover the amount which should have been recovered after the dismissal of the appeal and for want of any interim order from any Court of law, it was the duty of the revenue to recover the amount. Revenue is due from the petitioner, since the year 2008 and today, even no appeal is pending questioning the liability and only application for restoration of appeal is pending and twice the restoration application has been dismissed by the appellate authority. Therefore, in the facts of the case, we do not find any reason to stay the demand - Decided against assessee.

Summary

Issues:
1. Appeal dismissal due to lack of COD clearance
2. Writ petition challenging Tribunal's order
3. Prematurity of the writ petition
4. Request for expeditious consideration of restoration petition
5. Interim relief for public sector unit

Issue 1: Appeal dismissal due to lack of COD clearance
The petitioner's appeal was dismissed by the Tribunal for not obtaining COD clearance, despite multiple attempts to secure it. The petitioner argued that the Hon'ble Supreme Court's judgment clarified that COD clearance is not necessary for public sector units to file appeals. The petitioner sought restoration of the appeal based on this premise.

Issue 2: Writ petition challenging Tribunal's order
The petitioner filed a writ petition challenging the Tribunal's order of dismissing the appeal, citing the Hon'ble Supreme Court's ruling on COD clearance for public sector units. The petitioner contended that since the COD is non-functional, the appeal should be restored.

Issue 3: Prematurity of the writ petition
The Court found the writ petition premature as the application for restoration of the appeal was still pending before the Tribunal. The Court emphasized that the petitioner should pursue the restoration process before seeking relief from the Court.

Issue 4: Request for expeditious consideration of restoration petition
The petitioner requested the Tribunal to expedite the consideration and decision on the restoration petition due to the prolonged pendency of the matter. The Court directed the CESTAT to handle the restoration application promptly based on its workload.

Issue 5: Interim relief for public sector unit
The petitioner, a public sector unit, sought interim relief as its appeal had been dismissed, and the restoration application was pending. The Court noted that the revenue was due from the petitioner since 2008, and there was no pending appeal challenging the liability. Consequently, the Court rejected the prayer for interim relief, emphasizing that public sector undertakings are not exempt from legal obligations and liabilities.

In conclusion, the Court advised the petitioner to pursue the restoration process diligently before seeking judicial intervention. The Court emphasized the importance of adhering to legal procedures and timelines, while also underscoring the accountability of public sector units in meeting their financial obligations.