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TMI Blog2013 (10) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment delivered in the case of Electronics Corporation of India Limited? 2. The brief facts of the case are that the Commissioner, Central Excise and Service Tax, Ranchi, after hearing the petitioner, passed an order-in-original case No. 99/ST/COMMR/2008, dated 31-3-2008, whereby it has been held, inter alia, that the activity of removing/extraction of ash from deposits/ash ponds by the petitioner-company is a cleaning activity and therefore, liable to Service Tax under "cleaning service". Aggrieved against the said order dated 31-3-2008, petitioner preferred an appeal before the Customs, Excise & Service Tax Appellate Tribunal, East Zonal Branch, Kolkata. The Tribunal found that the petitioner did not obtain any clearance from CoD, which was constituted in pursuance of the various orders passed by Hon'ble Supreme Court in the cases of Oil and Natural Gas Commission v. CCE reported in 1995 Supp. (4) SCC 541 = 1992 (61) E.L.T. 3 (S.C.) decided on 11-10-1991, Oil and Natural Gas Commission v. CCE reported in (2004) 6 SCC 437 = 1994 (70) E.L.T. 45 (S.C.) decided on 7-1-1994 and Oil and Natural Gas Commission v. City & Industrial Development Corpn. Maharashtra Ltd. reported in ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in paragraph 15 that "the machinery contemplated was only to ensure that no litigation comes to court without the parties having had an opportunity of conciliation before an in-house committee." Hon'ble Supreme Court in the case of Electronics Corporation of India Limited (supra) observed that the principle and object behind the aforestated orders was unexceptionable and laudatory but at the same time, Hon'ble Supreme Court also observed that despite best efforts of the CoD, the mechanism has not achieved the results for which it was constituted and has, in fact, led to delays in litigation. Hon'ble Supreme Court has specifically taken note of very important fact that clearance is given in one case and refused in another case on the same set of facts, because of which one S.L.P was filed in the Supreme Court on the ground of discrimination. Thereafter Hon'ble Supreme Court observed in paragraph 17 as under :- "For example, in many cases of exemptions, the Industry Department gives exemption, while the same is denied by the Revenue Department. Similarly with the enactment of regulatory laws in several cases there could he overlapping of jurisdictions between, let us say, SEBI a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be decided by the Tribunal, which are essentially subject-matter in the litigation, may those have been raised by the Revenue or may those have been raised by the petitioner and in the fact situation, the appeal should have been restored by the Tribunal on the application submitted by the petitioner for restoration of the appeal but unfortunately the petitioner's application for restoration of the appeal has been dismissed, vide order dated 26-9-2012. The Tribunal observed that the petitioner's appeal was filed on 14th July, 2008 prior to the decision of Hon'ble Supreme Court delivered in the case of Electronics Corporation of India Limited and petitioner's application for clearance has been rejected by the CoD and the Tribunal in the case of Burn Standard Co. Ltd. v. CCE-Kol.-II, vide order dated 17th September, 2012, dismissed the appeal of the assessee in the same facts and circumstances. In sum and substance, the Tribunal was of the view that the petitioner's appeal could not be restored as firstly, it was filed prior to the decision of the Hon'ble Supreme Court rendered in the cases of Electronics Corporation of India Limited (supra) and secondly, in the similar facts and ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph 16 of the judgment of Electronics Corporation of India Limited (supra). Thereafter, Supreme Court observed that, instead of achieving the object, the mechanism of permission from the CoD resulted into more delay as well as loss of revenue and because of that experience, which is a working experience, Hon'ble Supreme Court observed in paragraph 18 that "in the changed scenario indicated above, we are of the view that time has come under the above circumstances to recall the directions of this Court in its various orderes reported as : (i) ONGC-II, dated 11-10-1991, (ii) ONGC-III, dated 7-1-1994 and (iii) ONGC-IV, dated 20-7-2007." Therefore, judgment of Hon'ble Supreme Court clearly and specifically indicated that "in the changed scenario", the orders passed in the above ONGC cases have been recalled, meaning thereby the effect of the judgment of Electronics Corporation of India Limited (supra) is prospective in nature and all cases wherein appeals have been dismissed for want of CoD clearance or because of refusal of permission by the CoD to pursue the appeal cannot be restored automatically or on mere application. 9. However, in the fact situation where the appeal of any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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