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2018 (9) TMI 88 - CALCUTTA HIGH COURTRevival of appeal - By the impugned order CESTAT refused to revive an appeal - irregular availment of MODVAT Credit. Held that:- The right of appeal sought to be exercised by the petitioner, is a statutory right. Such right flows out of a statute. It is available to any litigant governed by the appeal provisions in respect thereof. The petitioner herein, as a litigant, has the statutory right of appeal. Such right of appeal was sought to be put under suspended animation by the CoD mechanism. The CoD mechanism, then governing the field, postulates, that the right to appeal would revive upon CoD granting the clearance in respect thereof. CoD mechanism was put in place by various decisions of the Hon’ble Supreme Court in respect of an authority within the meaning of Article 12 of the Constitution of India. The appellant, before CESTAT, the petitioner herein, was granted leave to apply for restoration upon obtaining CoD clearance. Since the CoD mechanism was done away with, CESTAT ought to have taken such fact into consideration when the petitioner approached it. The impugned order does not look into the problem in such aspect. It proceeds to find that, the appellant continues to suffer from the lack of grant of clearance by COD. The right to prefer the appeal revive been done away, CESTAT ought to consider and decide such appeal on merits. Petition allowed.
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