2016 (6) TMI 358 - HC - Central Excise

Seeking revival of appeals - tribunal dismissed the revenue appeal for requirement of approval/clearance of the Committee on Disputes (COD) - Now as per decision of Supreme Court in the case of Electronics Corporation of India Limited v. Union of India and others 2011 (2) TMI 3 - Supreme Court , the approval/clearance is no longer required - COD had not taken any decision either for granting or rejecting the application. Held that - while it is true that there is a considerable delay in filing the present applications, in the opinion of this court, the reasons put forth by the applicant in the affidavit-in-rejoinder for the delay caused in filing the applications, are plausible and acceptable. In the present case, strictly speaking, the question of invoking the bar of limitation would not arise, inasmuch as, the appeals had been disposed of with liberty to the applicant to move for revival once the approval of the COD was obtained. However, for the reasons set out hereinabove, the COD does not appear to have decided the applications filed by the applicant and now in the light of the decision of the Supreme Court in the case of Electronics Corporation of India Limited v. Union of India (supra), such requirement is no longer necessary. Insofar as the applicant is concerned, it was only when a similar appeal came up for hearing before the Tribunal and the Tribunal followed the earlier decisions which were subject matter of challenge in the captioned appeals, that it came to the notice of the concerned officer that the present appeals are required to be revived and accordingly, the present applications for revival came to be moved before this court. Considering the overall facts of the case and the fact that huge amount of revenue is involved in the present appeals, as rightly submitted by the learned counsel for the applicant, the delay is required to be condoned, more particularly because huge amount of public money is involved. - Decided in favour of applicant

Summary

Issues Involved:
1. Revival of Tax Appeals No.1455 of 2007 and No.1 of 2010.
2. Requirement and subsequent non-requirement of Committee on Disputes (COD) clearance.
3. Delay in filing the revival applications.
4. Justification for condonation of delay.

Issue-wise Analysis:

1. Revival of Tax Appeals No.1455 of 2007 and No.1 of 2010:
The applicant, Commissioner of Central Excise and Customs, Surat-II, filed applications for the revival of Tax Appeals No.1455 of 2007 and No.1 of 2010. These appeals were initially dismissed by the High Court on 30.09.2010 due to the absence of COD clearance, with liberty to apply for revival once such clearance was obtained.

2. Requirement and Subsequent Non-requirement of Committee on Disputes (COD) Clearance:
Initially, the Supreme Court in Oil and Natural Gas Commission v. Collector of Central Excise mandated COD clearance for pursuing litigation. However, this requirement was recalled by the Supreme Court in Electronics Corporation of India Limited v. Union of India and others, making COD clearance unnecessary. Consequently, the applicant sought to revive the appeals as COD clearance was no longer required.

3. Delay in Filing the Revival Applications:
The revival applications were filed in July 2015, over four years after the Supreme Court's decision in Electronics Corporation of India Limited. The respondent contended that the applicant was negligent, as the Central Board of Excise and Customs had issued a circular on 24.03.2011 informing that COD clearance was no longer required, yet no steps were taken for revival until much later.

4. Justification for Condonation of Delay:
The applicant justified the delay by citing frequent transfers and changes in officers, restructuring of the department, and the bona fide belief that communication from COD would be received. The applicant also argued that the revival of the appeals was crucial due to the significant public revenue involved. The court found the reasons plausible and acceptable, emphasizing that the delay was not due to procedural red-tape but genuine administrative challenges.

Conclusion:
The court condoned the delay, noting that the appeals were dismissed with liberty to apply for revival once COD clearance was obtained, which was no longer necessary. The court emphasized the substantial public revenue involved and accepted the applicant's explanation for the delay. Consequently, the applications were allowed, and Tax Appeals No.1455 of 2007 and No.1 of 2010 were restored to file.