2017 (7) TMI 793 - AT - Central Excise

Restoration of appeal on production of necessary clearance from COD - applicant could not get COD clearance in respect of two appeals - Held that - though the fact of denial of clearance was not brought to the notice of the Tribunal the liberty to apply for restoration granted in such final orders become nullity as it was clearly recorded that such restoration will be on production of necessary clearance. In respect of these two appeals we find no merit at all in the present applications to recall the order of the Tribunal. Regarding Appeal No.E/1288/2006 the appellants submitted that they have got COD clearance on 18.12.2007. In spite of repeated queries by the Bench the applicant could not submit any reason for delay of more than 10 years after the COD clearance was given by the competent authority. Even considering that on 17.02.2011 the Hon ble Supreme Court recalled the earlier order and dispensed with the COD clearance mechanism for another 6 years the applicant did not take any action regarding the dismissal orders passed in 2006. Here again no reasons were putforth for such attitude of the applicant. The matter which are considered and decided by the Committee of Disputes and permission specifically denied cannot be re-opened. As such in the present case two appeals cannot be even considered for recalling. On the third appeal we note that 10 years delay after the COD permitted the applicant to file an appeal has not been explained at all. Appeal dismissed - decided against applicant.

Summary

Issues:
1. Recall of final orders passed by the Tribunal due to non-availability of requisite permission from the Committee of Disputes (COD).
2. Denial of cenvat credit and imposition of penalties on the applicant.
3. Validity of the requirement of COD clearance as per guidelines laid down by the Hon’ble Supreme Court.
4. Consideration of delay in filing applications for restoration of appeal.
5. Impact of the Hon’ble Supreme Court's decision in Electronics Corporation of India Ltd. on the requirement of COD clearance.

Analysis:

1. The applicant filed three misc. applications to recall final orders dismissing appeals due to lack of COD permission. Liberty was granted to apply for restoration upon obtaining necessary clearance. The applicant received COD clearance for one appeal but not for the other two. The applicant deposited the amount involved post dismissal.

2. The issue pertains to denial of cenvat credit and penalties. The applicant argued that COD clearance was no longer necessary post a specific date, citing relevant case laws. The applicant emphasized the substantial amount involved and being a Public Sector Undertaking to request restoration of appeals.

3. The validity of the requirement for COD clearance was contested. The applicant argued that post a certain date, COD clearance was not mandatory as per the Hon’ble Supreme Court’s decision. The respondent, however, maintained that the requirement was valid during the relevant period and actions taken based on those guidelines should not be revisited.

4. The delay in filing applications for restoration of appeal was a crucial point of contention. The respondent highlighted the significant delay of over 10 years in pursuing the appeals even after receiving COD clearance. Legal precedents were cited to support the dismissal of belated applications without valid reasons.

5. The impact of the Hon’ble Supreme Court's decision in Electronics Corporation of India Ltd. on the requirement of COD clearance was examined. The Tribunal emphasized that actions taken in accordance with the law prevailing at the time should not be undone retroactively based on subsequent developments.

In conclusion, the Tribunal dismissed the applications for restoration of appeals, citing lack of legal merit due to the significant delay in pursuing the appeals and the adherence to the COD clearance requirement during the relevant period.