TMI Blog2009 (5) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, delay in filing the application cannot be a justification for dismissal of the appeal - appeal restored. - E/3469/2006 - 369/2009-EX(PB) - Dated:- 19-5-2009 - Justice R.M.S. Khandeparkar, Shri M. Veeraiyan, JJ. REPRESENTED BY : Shri B.L. Narshimhan, Advocate, for the Appellant. Shri Surinder Shah, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. Heard learned advocate for the applicant and learned DR for the respondent. 2. This is an application for restoration of the appeal no. E/3469 of 2006 along with stay application no. E/2785 of 2006. 3. The appellants sought to challenge the order dated 21st July, 2006 passed by the Commissioner, Lucknow, and communicated to the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for stay for want of clearance from COD, as mere absence of clearance from COD or delay in obtaining the clearance from COD cannot be a ground for dismissal of the appeal or any application. In that regard, he drew our attention to the said decisions of the Supreme Court and that of the High Court of Delhi and submitted that the clearance from COD has nothing to do with the maintainability of the appeal or any application therein. It is essentially to curtail the litigation and thereby avoid unwarranted burden on the public exchequer that reference of the matter to COD prior to proceeding with the remedy of appeal by the Government or public bodies is expected. According to the learned advocate for the applicants, the order of the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any ground contrary to the statutory provisions would result in great injustice to the party and would virtually negate the right of appeal which is otherwise assured to the aggrieved party under the statute. 10. As regards the requirement of clearance from COD, the same is not in terms of the statutory provisions either under the Central Excise Act or under the Customs Act or the Finance Act under which the Service Tax matters are dealt with. It is in terms of specific directions issued by the Apex Court in ONGC s case (supra) [reported in 1992 (61) E.L.T. 3 (S.C.)]. While issuing the necessary direction in that regard, the Apex Court had ruled thus- It shall be the obligation of every court and every Tribunal where such a dispute i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India Ltd. in relation to the Writ Petitions filed by the Canara Bank that in the absence of the clearance by High Power Committee for resolution of disputes constituted by the Central Government, the petition could not have been filed by the Bank, after going through the decisions of the Apex Court in ONGCs cases (supra), held thus : We do not think that the petition could be dismissed as not maintainable because of want of clearance to the petitioner from the Committee that we say for two reasons. Firstly, for want of clearance the petition cannot be dismissed, it has to be kept pending awaiting reconciliation or clearance. Secondly, in view of the subsequent order of the Supreme Court in ONGCs case it does not lie with the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts for reconciliation and in the absence thereof to grant clearance for litigation, it is obvious that the decisions of the Apex Court in ONGCs cases (supra) do not amount to taking away the right of the litigant to file the appeal which is statutorily assured to them under the relevant provisions of the statutes. Being so, the appellants are justified in contending that the Tribunal could not have dismissed the appeal in the absence of clearance from COD. The Tribunal could have kept the matter pending on that count. 8. It is sought to be contended on behalf of the respondent that such a view may create unwarranted pendency of the appeals before the Tribunal. Indeed, the apprehension in that regard is not totally unfounded. However, mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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