Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2018 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (12) TMI 248 - HC - Central ExciseRestoration of appeal - appeal was dismissed for want of COD clearance - Held that:- An obligation was placed on every Court and Tribunal where such a dispute is raised, to demand a clearance from the COD and in case it has not been so pleaded and in the absence of the clearance, not to proceed with the case - Later on, a clarification was also issued on 7.1.1994 which abundantly clear that requirement of obtaining clearance from COD was not treated as bar to the lodgment of an appeal or petition either by the Union of India or Public Sector Undertakings before any Court or Tribunal so as to save limitation. The only consequence of not obtaining clearance from COD was that the proceedings were not to be proceeded with. That means a proceeding was required to be kept as it is without progress till the clearance was given. There was nothing in the aforesaid two directions to empower the Tribunal to dismiss the appeal for want of COD clearance - it was not at all permissible by the Tribunal to dismiss appellant's appeal filed in year 2006 against the order passed by the jurisdictional Commissioner only for want of clearance from COD. Even when there was no COD clearance granted, the Tribunal had no jurisdiction and authority under the law to dismiss the appeal for want of COD and then to require the parties to apply restoration upon obtaining clearance. The only permissible course of action was to keep the appeals pending without further proceedings, awaiting submission of COD clearance which was required to be granted once the attempts to resolve the dispute failed. The learned Tribunal has dismissed the applications for restoration on the ground that the applications for restoration were filed after a long delay. The Tribunal was not correct in doing so. Present is not a case where the appeals were dismissed for want of prosecution or for want of mandatory pre-deposit. It is also not a case where the appellant did not file any appeal and the appeal itself was filed after a long delay. Once it is held that the Tribunal had no jurisdiction to dismiss the appeal on the ground of want of clearance from COD, it was the duty of the Tribunal to restore the appeals to undo the injustice caused to the appellant who is entitled to hearing of appeal on its own merits, having suffered demand of crores of rupees as excise duty in denial of its claim of cenvat credit - appeals filed by the appellant before the Tribunal shall stand restored to its original number for being heard on its on merits and in accordance with law - appeal allowed.
|