TMI Blog2013 (10) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... s - the petitioner’s contention is that in one of the appellate orders, the same issue has been decided in favour of the petitioner and against the Revenue - thus the issue certainly requires consideration by the Tribunal - the Tribunal committed error of law by dismissing petitioner’s application for restoration of appeal, which was dismissed on 10-9-2008 – Decided in favour of Petitioner. - W.P. (T) No. 6677 of 2012 - - - Dated:- 29-1-2013 - Prakash Tatia and Jaya Roy, JJ. Shri B. Poddar, Sr. Advocate, D. Poddar, P. Poddar and A. Sinha, for the Petitioner. Ms. D. Roshan, R. Kumar, A. Kumar and R. Kumari, for the Respondent. ORDER The question involved in this writ petition is, whether, in the light of the decision of the Hon ble Supreme Court delivered in the case of Electronics Corporation of India Limited v. Union of India Ors. reported in (2011) 3 SCC 404 = 2011 (265) E.L.T. 11 (S.C.) = 2011 (21) S.T.R. 593 (S.C.), the appeals, which have been dismissed by the appellate authority for want of clearance from the Committee on Disputes (CoD) constituted in the light of the orders passed by Hon ble Supreme Court in cases of ONGC-II, dated 11-10-1991 [1992 (61) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertakings in between themselves, to ensure that no litigation comes to court or to a tribunal without the matter having been first examined by the Committee and its clearance for litigation. Thereafter, in ONGC-III case decided on 7-1-1994, Hon ble Supreme Court directed that in absence of clearance from the Committee of Secretaries (CoS) , any legal proceeding will not be proceeded with and this was made subject to the rider that appeals and petitions filed without such clearance could be filed to save limitation, but it was also directed that the needful should be done within one month from such filing, failing which the matter would not be proceeded with. In ONGC-IV case decided on 20-7-2007, Hon ble Supreme Court extended the concept of dispute resolution by the High-Powered Committee to amicably resolve the disputes involving the State Governments and their instrumentalities. The idea behind the setting up of this Committee, initially, called a High-Powered Committee (HPC) , later on called as Committee of Secretaries (CoS) and finally termed as Committee on Disputes (CoD) , was to ensure that resources of the State are not frittered away in inter se litigations betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply for restoration in the appeal after obtaining CoD clearance later on. The petitioner, finding the order dated 10-9-2008 passed by the Tribunal, approached CoD for grant of permission to pursue its appeal but the CoD, by reasoned order dated 21-10-2008, refused permission to the petitioner. The petitioner, aggrieved against the refusal of CoD, preferred review petition on 24-12-2008 with the prayer to review its order dated 21-10-2008 and allow petitioner to pursue appeal as such permission is given to the respondent-Revenue to pursue its appeal before the Tribunal. 4. The contention of the learned counsel for the petitioner, Shri Binod Poddar, is that, on the one hand, petitioner has been denied opportunity to pursue its appeal before the Tribunal, whereas permission has been granted to the respondent-Department to challenge the order passed in original side by the Commissioner, Central Excise and Service Tax, Ranchi. Not only this, according to the learned counsel for the petitioner, in the appellate side, in another order, it has been held, that the petitioner is not liable to pay Service Tax under the same or similar contract. Therefore, according to the learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate when the petitioner s application for restoration was considered and therefore, on the ground of earlier rejection of permission by the CoD, the petitioner could not have been denied permission to pursue its appeal. 6. Learned counsel for the Revenue submitted that Hon ble Supreme Court in the case of Electronics Corporation of India Limited nowhere laid down that all those appeals, which have already been dimissed for want of CoD permission or because of refusal of permission by the CoD, shall stand restored or can be restored on the application filed by the aggrieved party. It is also submitted that the order of dismissal of appeal of the petitioner dated 10-9-2008 attained finality as well as the order of refusal of permission to pursue appeal against the petitioner also attained finality. Therefore, the Tribunal was justified in dismissing the petitioner s application for restoration. 7. We considered the above submissions of the learned counsel for the parties and perused the impugned order and the law laid down by Hon ble Supreme Court. 8. Hon ble Supreme Court firstly, appreciated the concept of litigation without conciliation between the public sector undertakings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue by the CoD and same has been denied to the writ petitioner and therefore, the matter was pending before the Tribunal relating to the same issue arising out of the original order but as has been raised by the Revenue only, in that fact situation, in our opinion, denial of opportunity to pursue the appeal to the writ petitioner cannot be justified in the light of the reasons given by the Hon ble Supreme Court, for which even Hon ble Supreme Court had to recall its own earlier orders of even constitution of CoD. In addition to the above, the petitioner s contention is that in one of the appellate orders, the same issue has been decided in favour of the petitioner and against the Revenue and therefore, in that situation, the issue certainly requires consideration by the Tribunal and therefore, we are of the considered opinion that in the facts of this case, the Tribunal committed error of law by dismissing petitioner s application for restoration of appeal, which was dismissed on 10-9-2008. 10. In view of the above reasons, this petition is allowed and the order dated 26th September, 2012 is set aside and petitioner s appeal, Service Tax Appeal No. 126/2008 as well as St ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
