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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 ..... 404 and in the case of Northern Coalfields Limited Vs. Heavy Engineering Corporation Limited and another reported in (2016) 8 SCC 685? 2. Bereft of unnecessary details, the relevant facts necessary for adjudication of this appeal are briefly indicated hereinafter: Appellant, a Government of India undertaking, engaged in works contract and duly registered before Service Tax Department under the category of 'Commercial or Industrial Construction Service' entered into a contract with Bharat Heavy Electrical Limited (BHEL) on 25th February, 2005 for construction of civil, structural and architectural work at Chandrapura Thermal Power Station, DVC, Jharkhand. As per the work order, materials were required to be provided by the appellant, National Buildings Construction Corporation at its own cost with the exception that cement and steel were supplied by BHEL. Under Government Notification no. 15/2004-ST dated 10th September, 2004, exemption was granted in the matter of levy of service tax on 67% of 'Gross Amount Charged' for construction services. By a clarification Notification no. 04/2005-ST dated 1st March, 2005, it was indicated that 'Gross Amount Charged' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping of jurisdictions between, let us say, SEBI and insurance regulators. Civil appeals lie to this Court. Stakes in such cases are huge. One cannot possibly expect timely clearance by CoD. In such 8 cases, grant of clearance to one and not to the other may result in generation of more and more litigation. The mechanism has outlived its utility. 18. 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 Orders reported as (i) ONGC-II dated 11.10.1991, (ii) ONGC-III dated 7.1.1994 and (iii) ONGC-IV dated 20.7.2007. 4. Meanwhile, learned CESTAT by order dated 8th October, 2012 (Annexure-4) dismissed the appeal for want of COD clearance, observing therein that the appellant cannot take the benefit of the judgment of Constitution Bench of Hon'ble Supreme Court as the instant appeal had been preferred prior to the decision in the case of Electronics Corporation of India Limited( Supra). The Tribunal further observed that the applicant/appellant had not produced any clearance from COD, nor have they produced any evidence that their application for clearance is pending befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly as in March, 1989, even before ONGC-2 was decided on 11-10-1991. 23.2. The Permanent Machinery of Arbitration was outside the statutory provision then regulating arbitrations in this country, namely, the Arbitration Act, 1940 (10 of 1940). 23.3. The award made in terms of the Permanent Machinery of Arbitration being outside the provisions of the Arbitration Act, 1940 would not constitute an award under the said legislation and would therefore neither be amenable to be set aside under the said statute nor be made a rule of the court to be enforceable as a decree lawfully passed against the judgment-debtor. 23.4. The Committee on Disputes set up under the orders of this Court in the series of orders passed in ONGC cases did not prevent filing of a suit or proceedings by one PSE/PSU against another or by one government department against another. The only restriction was that even when such suit or proceedings were instituted the same shall not be proceeded with till such time the Committee on Disputes granted permission to the party approaching the Court. 23.5. The time-limit fixed for obtaining such permission was also only directory and did not render the suit and/ or pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll such time the CoD granted permission is also beyond dispute as on the date of the institution of the suit the direction of this Court in ONGC group of cases still held the field. Such permission could be obtained within 30 days which was not sacrosanct but the institution of the suit itself could not be faulted as a litigant was in terms of the direction of this Court entitled to institute the proceedings to save limitation. The High Court has, all the same, rejected the plaint on the ground that permission from CoD was not obtained. In doing so the High Court obviously understood the direction of this Court to mean as though absence of such permission was a fatal defect which it was not. The orders of this Court to which we have made a reference earlier unequivocally make it clear that filing of the suit in itself was not barred. What was restrained was further progress in the suit till such time permission from the CoD was obtained. Inasmuch as the High Court considered the absence of permission from CoD to be a mandatory legal requirement for the institution of the suit it committed a mistake. No such legal requirement could be read into the judgment of this Court nor has any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date, it was decided by the learned CESTAT on 8th October, 2012. Therefore, the appeal was hit by the law prevailing at the relevant point of time in the light of ONGC directions. Therefore, learned CESTAT was right in dismissing the appeal on that ground. 8. We have considered the submissions of learned counsel for the parties and taken note of the relevant facts in issue, undisputed by them, and also legal position as it stands by virtue of judgments rendered by the Apex Court in the case of ECIL (Supra) and Northern Coalfields Limited (Supra). The extract of the decisions quoted above do not leave any room of doubt that in a case of inter corporation dispute or dispute between PSU and Ministry of Government, the aggrieved party could file a suit or a case or appeal before a Tribunal/ Court of Law but the Tribunal/Court could not proceed till the COD permission was granted. The requirement of obtaining COD permission within 30 days was also not sacrosanct, but the institution of the suit was not prohibited, as the litigant was entitled to institute the proceeding to save limitation. The only rider was that the concerned Tribunal or Court could not proceed with the suit so long ..... X X X X Extracts X X X X X X X X Extracts X X X X
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