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TMI Blog2012 (10) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... i B.N. Chattopadhyay, Consultant, for the Appellant. Shri B.B. Agarwal, Commissioner, for the Respondent. [Order per : D.M. Misra, Member (J)]. - This Misc. Application is filed by the Applicant, a Public Sector Undertaking, for restoration of the Appeal dismissed earlier for want of clearance from the Committee on Disputes (hereinafter referred as COD). The Appeal in question was filed on 7-4-2008 against the Order-in-Original No. 52/Denovo/Commissioner/CE/KOL-II/Adjn/2007-08 dated 4-1-2008 passed by Commissioner of Central Excise, Kolkata-II. Necessary permission was thereafter sought by the Appellant from COD to pursue the Appeal before this Tribunal. The same was rejected by COD on 19-2-2009. They filed another Application for re-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ECIL's case (supra), the C.B.E.C. had issued a Circular on 24-3-2011, wherein it was clarified that there would not be any requirement of obtaining any approval of the COD in pursuing litigations, as was done earlier, and the appeals may be pursued before the tribunals/courts without obtaining clearance from the COD. It was further clarified that proposals which had already been sent to the COD and no decision has been taken on the same till 17-2-2011, shall be continued to be covered by the latest decision of the Hon'ble Supreme Court and that the COD permission is not required in those cases. He further submits that in the instant case, the request of the Applicant for COD permission was rejected on 19-2-2009 and reconsideration of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 (233) E.L.T. 30." He has submitted that a plain reading of the said observation of the Hon'ble Apex Court reveals that the mechanism/procedure, laid down by the Hon'ble Supreme Court in the cases mentioned earlier, has outlived its utility. That means, the mechanism has lost its relevance in the present circumstances, though successfully carried out the avowed objective of reducing litigation between two Govt. Organs in the past. Therefore, such a mechanism be dispensed with in future, being outdated and obsolete. But, the said observation cannot be understood to allow reopening the cases already closed at various levels due to rejection of COD permissions between 1993 and 2011. Such an interpretation will lead to an absurd result, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, submitted that the mechanism of COD permission ordered by the Hon'ble Supreme Court in the three ONGC's cases in the past, is a deviation from the statutory right of appeal conferred on the aggrieved person, as prescribed under the Central Excise Act and the Customs Act, as the case may be. Therefore, once the said mechanism is abandoned, by virtue of statutory right to Appeal, it would be appropriate to restore the Appeals rejected on the ground of COD permission. 7. Learned Senior Counsel, Shri J.P. Khaitan submits that all the cases pending clearance before the COD as on the date of Order, have been covered by the said judgment of the Hon'ble Apex Court in the ECIL' case. But the cases already rejected by the COD in the pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee are not sustainable. Once it is apparent that merely on the ground of refusal of the permission by the Committee on Disputes, the appeal could not have been dismissed and yet the appeal was dismissed solely on the said ground, as rightly pointed out on behalf of the department, such an order deserves to be recalled. In fact, similar such orders have been recalled on some other matters also." 9. We are unable persuade ourselves to be in agreement with the said observation of the Mumbai Bench. Therefore, we direct the registry to place the following question of law before the Hon'ble President to refer the matter to a Larger Bench to resolve the same :- "Whether in view of the ECIL's judgment (supra), instances where COD perm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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