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2014 (5) TMI 380 - HC - Central ExciseRestoration of appeal - Clearance from COD neither applied nor obtained - no proof was filed showing that the application for clearance has been filed and pending before the COD - Held that:- petitioner, HCL, filed appeal in 2009. As per the Oil & Natural Gas Commission (1994 (1) TMI 88 - SUPREME COURT OF INDIA), the petitioner should have approached COD for obtaining clearance within one month after such filing (i.e. on 14.10.2009). But even though the appeal was pending from 2009 to 2012, the petitioner has not approached COD for obtaining clearance. As on the date of the judgment of Electronics Corpn. of India Ltd. (2011 (2) TMI 3 - Supreme Court), i.e. 17.2.2011, the petitioner has neither obtained COD clearance, nor produced evidence showing that it had approached COD for obtaining clearance. It is a matter of record that the petitioner had applied for COD clearance only on 4.9.2012 just ten days prior to taking up of its appeal. When assessee filed appeal on 14-10-2009, COD system was in force; hence, as per Oil & Natural Gas Commission v. Collector of Central Excise, assessee should have filed application before COD within 1 month after filing appeal - As on 17-2-2011, assessee had neither obtained COD clearance, nor applied for COD clearance, therefore, assessee was not eligible for benefit of Instruction dated 24-3-2011 - Having not been vigilant in applying for COD clearance, assessee could not take advantage of Electronics Corpn. of India judgment - Decided against assessee.
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