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2014 (5) TMI 380 - HC - Central ExciseRestoration of appeal - Clearance from COD neither applied nor obtained - no proof was filed showing that the application for clearance has been filed and pending before the COD - Held that - petitioner, HCL, filed appeal in 2009. As per the Oil & Natural Gas Commission (1994 (1) TMI 88 - SUPREME COURT OF INDIA), the petitioner should have approached COD for obtaining clearance within one month after such filing (i.e. on 14.10.2009). But even though the appeal was pending from 2009 to 2012, the petitioner has not approached COD for obtaining clearance. As on the date of the judgment of Electronics Corpn. of India Ltd. (2011 (2) TMI 3 - Supreme Court), i.e. 17.2.2011, the petitioner has neither obtained COD clearance, nor produced evidence showing that it had approached COD for obtaining clearance. It is a matter of record that the petitioner had applied for COD clearance only on 4.9.2012 just ten days prior to taking up of its appeal. When assessee filed appeal on 14-10-2009, COD system was in force; hence, as per Oil & Natural Gas Commission v. Collector of Central Excise, assessee should have filed application before COD within 1 month after filing appeal - As on 17-2-2011, assessee had neither obtained COD clearance, nor applied for COD clearance, therefore, assessee was not eligible for benefit of Instruction dated 24-3-2011 - Having not been vigilant in applying for COD clearance, assessee could not take advantage of Electronics Corpn. of India judgment - Decided against assessee.
Issues Involved:
1. Quashing of Misc. Order No.M-126/Kol/2013 dated 26.4.2013/1.5.2013 by CESTAT. 2. Quashing of the order dated 18.9.2012 in Excise Appeal No.532/2009 by CESTAT. 3. Requirement and implications of Committee On Disputes (COD) clearance. Detailed Analysis: Issue 1: Quashing of Misc. Order No.M-126/Kol/2013 dated 26.4.2013/1.5.2013 by CESTAT The petitioner sought to quash the Misc. Order No.M-126/Kol/2013, whereby CESTAT dismissed the application for restoration of Excise Appeal No.532/2009. The Tribunal dismissed the restoration application because the petitioner failed to produce either the permission from COD or any proof that the application had been pending before COD as on 17.2.2011. The Tribunal relied on its decision in the case of Burn Standard Co. Ltd. v. CCE, which stated that COD clearance was mandatory for proceeding with the appeal. Issue 2: Quashing of the order dated 18.9.2012 in Excise Appeal No.532/2009 by CESTAT The petitioner also sought to quash the order dated 18.9.2012, where CESTAT dismissed the appeal on the grounds that the petitioner did not produce clearance from COD nor any evidence that an application for clearance was pending on 17.2.2011. The appeal was initially filed on 14.10.2009, and the requirement for COD clearance was in effect at that time. The petitioner applied for COD clearance only on 4.9.2012, which was significantly delayed and not in compliance with the stipulated timeframe. Issue 3: Requirement and implications of Committee On Disputes (COD) clearance The COD was established following the Supreme Court's direction in Oil & Natural Gas Commission v. Collector of Central Excise to prevent inter se litigation between government departments and public sector undertakings. The Supreme Court in Electronics Corpn. of India Ltd. v. Union of India abolished the requirement for COD clearance, stating that the mechanism had outlived its utility and caused delays. However, the petitioner's appeal was filed before this judgment, and thus, the COD clearance requirement was applicable at the time of filing. Analysis of Contentions: - The petitioner contended that the requirement for COD clearance was scrapped by the Supreme Court in Electronics Corpn. of India Ltd., and therefore, the appeal should not have been dismissed for want of COD clearance. - The respondent argued that the petitioner neither obtained COD clearance nor applied for it within the required timeframe. The Tribunal's dismissal of the appeal and restoration application was justified due to non-compliance with the COD clearance requirement as per the Supreme Court's earlier directions. Court's Findings: - The court noted that the petitioner filed the appeal in 2009, and as per the Supreme Court's directions in Oil & Natural Gas Commission, the petitioner should have approached COD for clearance within one month of filing the appeal. The petitioner failed to do so and only applied for COD clearance in 2012. - The judgment in Electronics Corpn. of India Ltd. did not retroactively apply to cases where COD clearance was not obtained or applied for within the stipulated time before the judgment date. - The Tribunal's reliance on Burn Standard Co. Ltd. was appropriate as the petitioner's case did not differ materially from Burn Standard Co. Ltd., where the COD clearance was also a crucial factor. Conclusion: The court concluded that the orders dated 18.9.2012 and 26.4.2013/1.5.2013 by CESTAT did not suffer from any error of law warranting interference. The writ petition was dismissed, upholding the Tribunal's decisions based on the non-compliance with COD clearance requirements.
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