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TMI Blog2016 (6) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... pplications filed by the applicant and now in the light of the decision of the Supreme Court in the case of Electronics Corporation of India Limited v. Union of India (supra), such requirement is no longer necessary. Insofar as the applicant is concerned, it was only when a similar appeal came up for hearing before the Tribunal and the Tribunal followed the earlier decisions which were subject matter of challenge in the captioned appeals, that it came to the notice of the concerned officer that the present appeals are required to be revived and accordingly, the present applications for revival came to be moved before this court. Considering the overall facts of the case and the fact that huge amount of revenue is involved in the present appeals, as rightly submitted by the learned counsel for the applicant, the delay is required to be condoned, more particularly because huge amount of public money is involved. - Decided in favour of applicant - MISC. CIVIL APPLICATION (OJ) NO. 210 of 2015 In TAX APPEAL NO. 1455 of 2007, MISC. CIVIL APPLICATION (OJ) NO. 211 of 2015 In TAX APPEAL NO. 1 of 2010 - - - Dated:- 12-4-2016 - MS. HARSHA DEVANI MR. G.R.UDHWANI JJ. For the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance from the Committee. The appeals were, therefore, adjourned to 30th September, 2010, on which date, the learned advocate for the applicant had placed on record a communication dated 29th September, 2010 of the Additional Commissioner (Legal), Central Excise Customs, Surat-1 stating that it may take 3 4 months for such approval and that the office was reminding the Board for early clearance. In the light of the fact that the approval had not been granted, this court by an order dated 30.09.2010, dismissed the appeals with liberty to apply for revival as and when clearance is obtained from the Committee. 6. Subsequently, the Supreme Court in the case of Electronics Corporation of India Limited v. Union of India and others, (2011) 3 SCC 404 , has recalled the directions given by it in the case of Oil and Natural Gas Commission v. Collector of Central Excise (supra). Accordingly, the requirement for obtaining the approval / clearance of the Committee on Disputes (COD) was no longer necessary for pursuing the tax appeals. It is the case of the applicant that the COD had not taken any decision (either for granting or rejecting the application of the applicant for pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t thereto, the Central Board of Excise and Customs issued Circular No.390/R/262/09-JC dated 24.03.2011 informing that no clearance is required to pursue the appeals before various forums where the applications are already made on or before 17.02.2011. It is further the case of the respondent that despite the circular having been issued by the Department on 24.03.2011, no steps were taken by the Department to approach this court. However, now after almost four years, the revival applications are being filed by the Department on the ground that the appeals may be restored as in view of the decision of the Supreme Court in the case of Electronics Corporation of India Limited v. Union of India and others (supra). It is further averred that the applicant has failed to explain in their applications as to what is the reason for the delay in applying for such revival application belatedly i.e. after more than three years, which is beyond the normal period of limitation and that the applicants have also not brought on record the fact as to when the application before the COD was made by them. 8. The applicant has filed an affidavit-in-rejoinder to the averments made in the affidavit-in-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Electronics Corporation of India Limited v. Union of India and others (supra) and discontinuation of COD mechanism/non-requirement of clearance from COD. However, due to the aforesaid bona fide belief that appropriate communication would be received from the COD, as also due to frequent transfers/change of officers (for example, the then concerned Additional Commissioner (Legal) had been transferred to Bombay in February 2012 and thereafter about three or four Additional Commissioners (Legal) have taken charge of the said post), the miscellaneous civil applications could not be filed earlier. It is further the case of the applicant that there was also all India level restructuring resulting into transfer of several files including the file of the present assessee KRIBHCO from Surat-1 Commissionerate to Surat II Commissionerate on 15.10.2014 and that due to the aforesaid genuine and bona fide reasons, the present miscellaneous civil applications for revival of the captioned tax appeals could not be filed earlier. 11. Mr. Varun Patel, learned standing counsel for the applicant, reiterated the reasons stated in the affidavit-inrejoinder for not filing the miscel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o placed upon the decision of the Supreme Court in the case of State of Assam v. Susrita Holdings (P) Ltd., (2014) 11 SCC 192 , wherein the court was of the opinion that the High Court had erred in dismissing the appeal of the appellants therein on the ground of delay since the appeal was required to be heard on merits. There was a delay of nine months in filing the review application and the appellants had contended that the delay was due to unavoidable government procedure. The court placed reliance upon its earlier decision in the case of G. Ramegowda v. Special Land Acquisition Officer (supra) and observed that regarding the matter of delay in that case, it was inclined to observe that the malfunctioning of the State Government regarding the unpardonable lackadaisical attitude towards pursuing the matter in the court of law cannot be the reason for loss of public property, which involves public money and causes loss to the public exchequer. The court, therefore, felt that it was a fit case to exercise its discretionary power to condone the delay in filing the writ appeal in the interest of the public at large as the High Court had failed to do so. The court also condoned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.1 In support of his submissions, Mr. Nainawati placed reliance upon the decision of the Supreme Court in the case of Office of the Chief Post Master General v. Living Media India Ltd., 2012 (277) ELT 289 (SC), wherein, the court has held that it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, the court formed the opinion that the Department has miserably failed to give any acceptable and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate also placed reliance upon the decision of the Bombay High Court in the case of Commissioner of Service Tax v. Glaxo Smithkline Pharmaceuticals Ltd., 2015 (321) ELT 44 (Bom.) wherein, the applicant had sought for condonation of delay of 947 days in filing the application for restoration which was dismissed for want of prosecution. The court for the reasons stated in the said decision, found that it was a case of gross negligence on the part of the Department, and which could not be condoned and that, the explanation was routine and lacking in bona fides and accordingly, rejected the application. 12.3 It was submitted that in the facts of the present case also, nothing has been brought on record to show that the applicant had approached the COD for obtaining clearance. Referring to the circular dated 24.3.2011, it was submitted that in terms of the said circular, the proposals which have already been sent to the Committee and no decision had been taken thereon, shall be deemed to be covered by the decision of the Supreme Court in the case of Electronics Corporation of India Limited v. Union of India and others (supra), namely, that COD permission is not required in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of Electronics Corporation of India Limited v. Union of India and others (supra), the Central Board of Excise and Customs had issued a circular dated 24.03.2011 informing all concerned that there is no requirement for obtaining approval of the Committee on Disputes for pursuing the litigations as was being done and that field formations may now pursue their appeals in the respective Tribunals/Courts without obtaining clearance from the Committee on Disputes. It was clarified that proposals which have already been sent to the Committee and no decisions have been taken till 17.02.2011 shall be deemed to be covered by the decision of the Supreme Court, that is, COD permission is not required in those cases. It is the case of the respondent that despite the aforesaid instructions having been issued by the Board, the applicant did not take any steps to seek revival of the appeals. 16. It may be noted that the Supreme Court in the case of Oil and Natural Gas Commission v. Collector of Central Excise (supra), has held that it shall be the obligation of every court and every Tribunal where such a dispute is raised hereafter to demand a clearance from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case, it is the case of the applicants that during the pendency of the appeals, an application had been made to the Central Board of Customs and Excise requesting for obtaining COD clearance in respect of the present tax appeals. The applicant, together with the affidavit-in-rejoinder, has placed on record a communication dated 28.04.2010 addressed to the Central Board of Excise and Customs, New Delhi to do the needful for obtaining necessary clearance. Thereafter, before this court, on 30.09.2010, when the appeals came up for hearing, the learned advocate for the applicant had placed on record a communication dated 29.09.2010 of the Additional Commissioner (Legal), Central Excise and Customs, Surat-1 addressed to the learned counsel informing him that the office had already referred the matter to the Central Board of Excise and Customs, New Delhi for COD clearance, which may take three to four months for such approval and that the office is reminding the Board for early clearance. Thus, insofar as the applicant is concerned, it had done the needful in the matter for seeking COD clearance for preferring the appeals. However, neither the Board nor the COD informed the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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