TMI Blog2013 (11) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... o reason to interfere with our Order dated 11.09.2008 – Decided against Assessee. - Ex. Appeal No.165/08 - M-510/KOL/2012 - Dated:- 17-9-2012 - S. K. GAULE AND DR. D. M. MISRA, JJ. For the Appellant : N. K. Chowdhury, Adv. and B. N. Chattopadhyay, Consultant For the Respondent : B. B. Agrawal, Commissioner (A.R.) PER: Shri S. K. Gaule Heard both sides. The applicants filed this miscellaneous application for restoration of their Ex.Appeal No.165/08 which was dismissed by this Tribunal vide Order No.S-714/A-895/Kol/08 dated 11.09.2008 for want of COD clearance. The appeal was filed on 7.4.2008 against the Order-in-Original No. 52/Denovo/Commr./CE/Kol.II/Adjn./2007-08 dated 4.1.2008 passed by the Commissiner of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OD) on 19.02.2009, they filed another application for reconsideration of the said rejection order which was rejected on 2.4.2009. The contention is that they made another application on 8.5.2009 for reconsideration of the decision dated 19.2.2009 and 2.4.2009 and the decision on the same is pending. The contention is that since the decision is pending, the decision of the Honble Supreme Court in the case of ECIL (supra) is applicable to their case. The contention is that the application for restoration of appeal can be allowed irrespective of fact whether the application seeking permission is pending before COD or otherwise as has been held by the Mumbai Bench of this Tribunal in the case of Commr. of Central Excise, Raigad Vs. ONGC Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld. A.R. is that the appeal was dismissed on 11.09.2008, then the only way, it could have been restored was if the COD accorded permission. However, the COD had not only specifically denied them the permission on 19.02.2009, but also reiterated the said decision on 24.3.2009. 3.4 The contention of the ld. A.R. is that as on 17.02.2011, nothing was pending before the COD inasmuch as the COD had declined the permission not once but twice, as early as on 19.02.2009 and 24.03.2009, hence the said Hon ble Supreme Court s decision did not apply to their case as it only applied to cases which were pending with COD as on 17.02.2011. 3.5 The contention of the ld. A.R. is that if in respect of certain matters COD had already taken a decision pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permission to litigate was rejected by COD earlier i.e before 17.02.2011. They observed at para 6 as follows:- 6.Referring to the said para, it was sought to be contended on behalf of the respondent-assessee that the circular nowhere states that the decision of the Apex Court would apply retrospectively. Once the law has been clarified, it is not necessary for the Board further to clarify that the same would be effective right from the day on which the orders were passed which have been recalled. Considering the same, the contentions sought to be raised on behalf of the assessee are not sustainable. Once it is apparent that merely on the ground of refusal of the permission by the Committee on Disputes, the appeal could not have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The Committee of Disputes was only to decide, whether or not government authority/public sector undertaking should be permitted to proceed with the appellate proceedings. In the present case, in fact, the Revenue had sought permission, but the same was declined in November, 2009. The said decision was accepted by the Revenue. We do not think that Electronics Corpn. of India (supra) can apply to the facts of the present case as the request for permission to file appellate proceedings was declined by the Committee of Disputes. The decision taken by the Committee of Disputes dated 12th November, 2009 is not undone and has not become a nullity. If the contention of the Revenue is accepted, then in all case in which the Committee of Dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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