2014 (8) TMI 586 - AT - Service Tax

Recall of final order - Dismissal of appeal for want of clearance of the Committee on Disputes - Held that - Appellant s application to the COD for clearance to pursue this appeal was pending with that Committee when the Hon ble Supreme Court in the case of Electronics Corporation of India Ltd. 2011 (2) TMI 3 - Supreme Court recalled its earlier judgments on the subject thereby revoking the subject mechanism. In the circumstances, the appellant was virtually incapacitated in the matter of pressing their application before the COD. In the absence of COD itself, it cannot be expected that the appellant would obtain the above clearance as suggested in final order. Moreover, with the revocation of the said mechanism, the appellant should be deemed to have regained their right to pursue this appeal and, thereby, to move the present application before us. This view is also in consonance with the view expressed by the C.B.E. & C. in instruction dated 24-3-2011 issued to the field formations. Indeed, the said instructions virtually disabled the respondent from opposing the present application - Order recalled - appeals restored.

Summary

Issues:
- Recall of Final Order and restoration of appeal based on COD clearance requirement for public sector undertakings.

Analysis:
The appellant filed an application seeking the recall of Final Order No. 70/2011 and restoration of their appeal, which was dismissed for not obtaining clearance from the Committee on Disputes (COD). The appellant argued that the requirement for COD clearance for public sector undertakings to file appeals with the Tribunal was no longer applicable post the Supreme Court's decision in Electronics Corporation of India Ltd. v. UOI. The appellant's application to the COD for permission to pursue the appeal was pending when the Supreme Court recalled the mechanism on 17-2-2011. The appellant was unable to obtain COD clearance as per the Tribunal's previous order. The learned counsel requested the recall of the final order and restoration of the appeal.

The Superintendent (AR) presented judgments by the Supreme Court on the issue and highlighted the revocation of the mechanism by the Supreme Court's judgment. The Central Board of Excise and Customs (CBEC) issued an instruction post the Supreme Court's decision, stating that no approval from the COD was required for litigations. The instruction clarified that proposals pending with the COD till 17-2-2011 were covered by the Supreme Court's decision, eliminating the need for COD permission. The Superintendent (AR) requested appropriate orders in the matter.

After considering the submissions, the Tribunal acknowledged that the appellant's application to the COD was pending when the Supreme Court revoked the mechanism. The Tribunal noted that the appellant was unable to obtain COD clearance due to the revocation of the mechanism. In line with the CBEC's instruction and the changed legal landscape post the Supreme Court's decision, the Tribunal allowed the application, recalling the final order and restoring the appeal to its original number. The stay application was also revived, scheduled for a hearing on a specified date.

In conclusion, the Tribunal granted the appellant's request for the recall of the final order and restoration of the appeal, considering the change in legal requirements for COD clearance for public sector undertakings post the Supreme Court's decision. The Tribunal's decision aligned with the CBEC's instruction and the appellant's circumstances, enabling them to pursue the appeal without the previously required COD clearance.