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TMI Blog2020 (12) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter in the absence of COD permission. The learned CESTAT proceeded on an erroneous understanding of law that the appeal instituted by the appellant on 1st June 2010 could not be decided on merits in the absence of COD permission - substantial question of law posed for determination in the instant appeal is answered in favour of the appellant. - Hon'ble Mr. Justice Aparesh Kumar Singh And Hon'ble Mrs. Justice Anubha Rawat Choudhary For the Appellant : Ms. Amrita Sinha, Advocate For the Respondent : Mr. Ratnesh Kumar, Advocate ORDER Heard learned counsel for the appellant, Ms. Amrita Sinha and Mr. Ratnesh Kumar representing the respondent-Central Excise Service Tax Department. This appeal has been heard on the following substantial question of law: i) Whether learned Customs, Excise and Service Tax Appellant Tribunal (CESTAT) was justified in law in dismissing the appeal preferred by the appellant herein only on the ground that Committee on Disputes (COD) permission has not been taken at the time of filing of the appeal and till its disposal, in the light of Constitution Bench decision of the Apex Court in the case of Electronics Corporation of India Limited Vs. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier by an order passed by a Bench of Three Judges of the Apex Court in the case of Oil and Natural Gas Commission and another Vs. Collector of Central Excise reported in 1995 Supp (4) SCC 541 before the Larger Bench, taking note of the fact that numeral difficulties have been experienced by COD in relation to disputes between the Ministry of Government of India and public sector undertakings of the Government of India. The Hon'ble Court also took into note the submission advanced by learned Attorney General that time had come to revisit the orders passed by the three-Judge Bench of the Apex Court in the case of Oil and Natural Gas Commission (Supra). The matter was thereafter heard by a Constitution Bench of Five Judges and the directions issued by the Apex Court in its various orders earlier were recalled. Para 17 18 of the report is quoted hereunder: 17. 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication of disputes between Government Corporation have been effectuated and resorted to by the parties in terms of the judgment of the Apex Court in ONGC cases, the appellant was not entitled to seek a declaration that the award so made were illegal or liable to be set aside. The correctness of the judgment of Delhi High Court was called in question in the case of Northern Coalfields Limited (Supra). Hon'ble Supreme Court referred the decisions rendered in the ONGC cases earlier and the Constitution Bench judgment in the case of Electronics Corporation of India Limited ( Supra) and further the office memorandum dated 12th June, 2013 issued by the Government of India, Ministry of Industries and Public Enterprises Department of Public Enterprises revising the guidelines and deleting the earlier guidelines Para-13 that required clearance from the committee on disputes. The net effect of the discussions in the preceding paragraphs, have been summarized by Hon'ble Court at paragraph-23. We may profitably quote para -23 to 25, which have a seminal bearing upon the issue before us. 23. The net effect of the above can be summarized as under: 23.1. The Permanent Machinery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above propositions. It is true that the disputes between the appellant and respondents were referred for settlement in terms of the Permanent Machinery for Arbitration as early as in the year 1993/1994. It is also not in dispute that as on the date of the said reference the Committee on Disputes was already set up but no permission for a reference was taken. That the Arbitrator made an award under the Permanent Machinery of Arbitration which was questioned in appeals before the Law Secretary who made some alterations in the same is also admitted. That the award so made has not been accepted by the appellants is also common ground inasmuch as the appellant has filed a suit challenging an arbitral award in Civil Suit No.1709 of 2000 in which the appellant claimed a declaration that the contracts were rendered null and void on account on the breach of Clause 3 thereof. The appellant also sought a declaration that the respondent company was not entitled to claim any relief under the said contract nor was respondent 2 entitled to do so and that the so-called arbitral award was vitiated on the face of record hence liable to be set aside. That such a suit could be filed but could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before it. As such, on the date on which the appeal was decided by learned CESTAT i.e,. 8th October, 2012, the requirement of obtaining COD permission had been lifted by the Constitution Bench decision rendered in the case of ECIL (Supra) on 17th February, 2011. In those circumstances, the only bar over proceeding with the matter upon learned CESTAT in the light of previous directions of the Hon'ble Supreme Court in the ONCG group of cases having been lifted, the appeal was perfectly in order and should not have been dismissed on the sole ground without consideration on merits. The legal position stands further fortified by the judgment rendered in the case of Northern Coalfields Limited (Supra) by the Apex Court. 7. Learned counsel for the respondent- Central Excise Service Tax Department has also based his argument on the same decisions of the Apex Court. However, he is of the view that the appeal preferred prior to 17th February, 2011 i.e., decision of the Constitution Bench in the case of ECIL where to mandatorily accompany COD permission, failing which, the appeals could not be heard on merits. The appellant failed to obtain COD clearance before filing of the appeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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