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TMI Blog2012 (4) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... . C.C.E. reported in 1992 (61) E.L.T. 3 (S.C.). 2. To appreciate the contentions of respective parties, it is necessary to go into the history of creation of COD. The COD was constituted by Cabinet Secretary pursuant to the direction of the Supreme Court in first ONGC judgment reported as 1992 (61) E.L.T. 3 (S.C.). 2. In the second ONGC case reported in 1994 (70) E.L.T. 45 (S.C.), the Supreme Court had an occasion to reconsider the functioning of COD and it inter alia observed as follows :- "It is clear that order of this court is not to effect that - nor can that be done - so far as Union of India and its statutory corporations are concerned, the statutory remedies are effaced. Indeed, the purpose of the constitution of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Power Committee. The High Power Committee will deal with these matters most expeditiously and endeavour to resolve the matters. 5. Accordingly, there should be no bar to the lodgement of an appeal or petition either by the Union of India or the Public Sector Undertakings before any court or tribunal so as to save limitation. But, before such filing every endeavour should be made to have the clearance of the High Power committee. However, as to what the court or tribunal should do if such judicial remedies are sought before such a court or tribunal, the order of 11th October, 1991 clarifies : "It shall be obligation of every Court and every Tribunal where such a dispute is raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. We have already given two examples hereinabove. They indicate that on same set of facts, clearance is given in one case and refused in the other. This has led a PSU to institute a SLP in this Court on the ground of discrimination. We need not multiply such illustrations. The mechanism was set up with a laudatory object. However, the mechanism has led to delay in filing of civil appeals causing loss of revenue. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) under Section 35A may file an appeal before CESTAT. It is submitted that COD was created by the judgment of Supreme Court only to avoid unnecessary litigation between two Government wings and since the functioning of COD was not found proper the order was recalled by the Supreme Court vide its order in ECIL (supra). Ld. Counsel submits that once the judgment creating COD have been recalled it has an effect of revival of right of the appellant under Section 35B of the Act to file appeals against the order of Commissioner (Appeals). Therefore, the interest of justice demands that these appeals may be restored and decided in accordance with law. Learned Counsel further submits that this issue also came up before the Coordinate Bench of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court recalls the orders passed in ONGC matter (supra) is that these orders are no more in force. Thus, on the strength of these recalled orders the appellants cannot be denied their right to appeal against the impugned order. Otherwise also similar issue came up before the Coordinate Bench of this Tribunal in the matter of C.C.E., Raigad v. ONGC reported in 2011 (271) E.L.T. 576 wherein it was held that "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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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