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TMI Blog2016 (9) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal vide Final Order No.471/2004 dated 25-02-2004 (relating to appeal no.822/2003) and vide Final Order No.1573 to 1578/2006 (inter alia relating to appeal no.411/2006), for want of clearance from the Committee of Secretaries, however granting liberty to seek restoration of the appeals as and when the clearance is produced. 2. The appellant filed application on 21.11.2014 (Appeal No.822/2003) and 07-10-2014 (Appeal No. 411/2006) and 07-10-2014 (Appeal No.411/2006) seeking restoration of the appeals producing the COD (Committee of Disputes) clearance. These applications came up for hearing on 20-06-2016 on which day the learned counsel for appellant Shri. G. Prahlad sought time to take instructions from client for further cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Undertakings cannot be proceeded with unless clearance is produced, as observed by the supreme court in the case of ONGC reported in 1992(64) ELT page 3 as well as in its clarificatory judgment reported in 1974(70) ELT 45. In of this position, this appeal is dismissed for want for clearance. However, the party is at liberty to file application for revival of the appeal as and when the clearance is produced." 6. Similar order was passed by Tribunal in Appeal No. 411/2006 also. It is seen that the appellants were given liberty to file restoration application after obtaining the COD. Admittedly the COD was obtained in 2007. The appellants have then filed these applications seeking restoration of the appeal only in the year 2014 ie., after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sufficient cause for delay. The unexplained delay in filing the restoration application after getting COD is a fact which needs to be viewed seriously. 8. The factual scenario having been stated let us analyse the decisions placed before us by both sides. The learned counsel for appellant drew support from the decision in Hindustan Petroleum Corporation Ltd Vs CCE, Lucknow 2009-TIOL-1149-Cestat-Del to canvass the argument that mere delay on part of the applicant to approach the Tribunal cannot be a ground for rejection. We find that the Tribunal Order relied upon the appellant, is clear from para 6 where the learned advocate for the appellant therein on his own request had sought time to file an affidavit explaining the cause for delay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he had a favorable legal climate. Such acts of unexplained delay would cause prejudice to the Revenue. Therefore, the said case is distinguishable on facts. 10. On the other hand learned AR has relied on the judgment of High Court of Gujrat in Ablaze Process Systems referred to supra were the Hon'ble Court has held as follows: "Heard learned counsel for the respective parties and perused the documents on record. The order of CEGAT, Mumbai dismissing the appeal for non-compliance U/s 35F of the Central Excise Act, 1994 was passed on 12-12-1997 and the Misc. application praying to restore the said appeal came to be preferred only on 28-11-2008 ie after a period of more than ten years. To revive the appeal after a gap of more than ten yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d come up for hearing and was dismissed. 8. Considering the fact that the appeal relates to the year 2004, and failure on the part of the appellant to disclose reasons for absence of the appellant or representative before the Tribunal on the relevant dates when the matter came up for hearing apparently discloses lethargy and lack of efforts on the part of the appellant to pursue the matter diligently. Apparently, therefore, there is neither any sufficient cause disclosed for the delay in approaching the Tribunal to seek restoration of the appeal, nor sufficient cause is being disclosed in non-depositing the amount. 9. As already seen above, the appeal was dismissed on 5-11-2007. The present application is filed on 29-8-2008. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also be grounds for condoning the delay and acceding to the restoration of appeal. But in the instant case the appellant is a huge Public Sector Undertaking undeniably having sufficient manpower and other organizational infrastructure and facilities. This being so in our view, such enormous delay, that too unexplained even after giving opportunity for the same borders on the callous. In our opinion the appellant PSU having slumbered for so long cannot now wake up and obtain restoration of the appeal. This is precisely what the doctrine of laches propounds. Based on the maxim "vigilantibus et non dormientibus jura subviniunt" - The law aids the vigilant, not those who slumber on their rights. 13. We therefore of the considered opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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