TMI Blog2014 (5) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... ector 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. - W.P (T) No. 6852 of 2013 - - - Dated:- 13-3-2014 - MR. SHREE CHANDRASHEKHAR, J. Mr. Pandey Neeraj Rai and Mr. Rohit Ranjan Sinha for the Petitioner Mr. Ratnesh Kumar for the Respondent ORDER R. Banumathi, CJ. The writ petition is filed (i) for quashing the Misc. Order No.M-126/Kol/2013 dated 26.4.2013/1.5.2013, whereby Customs, Excise Service Tax Appellate Tribunal (CESTAT) dismissed the application filed for restoration of Excise Appeal No.532/2009 to its original file and (ii) for quashing the order dated 18.9.2012 passed in Excise Appeal No.532/2009, in and by which CESTAT dismissed the appeal on the ground that the petitioner did not produce clearance from the Committee On Disputes (COD), nor did it produce an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing aggrieved by the order of the Commissioner (Appeals), the petitioner filed appeal on 14.10.2009 before the CESTAT, Kolkata, in Excise Appeal No.532/2009. Vide order dated 18.9.2012, the CESTAT dismissed the appeal observing that the appellant-petitioner did not produce clearance from COD, nor produced any evidence that their application for clearance from COD was pending as on 17.2.2011(the date of judgment of Hon'ble Supreme Court in Electronics Corpn. of India Ltd. case (supra). The petitioner thereafter filed restoration petition on 21.11.2012 for restoration of appeal and the same was registered as MA(ROA)-460/2012 in Excise Appeal No.532/2009. Observing that the petitioner failed to produce either the permission from COD or any proof that the application has been pending before the COD as on 17.2.2011 and following the decision of the Tribunal in the case of Burn Standard Co. Ltd. v. CCE, (vide order No.M-510/KOL/2012 dated 17.9.2012), the CESTAT dismissed the restoration application by its order dated 26.4.2013. 5. Learned counsel for the petitioner, Mr. Pandey Neeraj Rai, contended that by the judgment rendered in the case of Electronics Corporation of India Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Collector of Central Excise 1995 Supp (4) SCC 541, Hon'ble Supreme Court propounded the view of setting up of a Committee on Disputes and directed the Government to set up the Committee on Disputes. In Oil Natural Gas Commission (supra), Hon'ble Supreme Court directed that in the absence of clearance from the Committee of Secretaries (COS), any legal proceedings shall not be proceeded with. In Electronics Corpn. of India Ltd. case (supra), Hon'ble Supreme Court observed that the mechanism of COD has outlived its utility and has caused delay in filing Civil Appeals, thereby causing loss of revenue and recalled its direction in its various order in Oil Natural Gas Commission cases (supra). In the case of Electronics Corpn. of India Ltd. (supra), Hon'ble Supreme Court held as under: 10. The above two instances are given only to highlight the fact that the mechanism set up by this Court in its Orders reported in (i) Oil Natural Gas Commission v. Collector of Central Excise 1995 Suppl.(4) SCC 541 (ONGC-II) dated 11.10.1991, (ii) Oil and Natural Gas Commission v. Collector of Central Excise (2004) 6 SCC 437 (ONGC-III) dated 7.1.1994; and (iii) Oil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strumentalities. 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 between entities of the State, which could be best resolved, by an empowered CoD. The machinery contemplated was only to ensure that no litigation comes to Court without the parties having had an opportunity of conciliation before an in-house committee. [see SCC paras 3-4 of the order dated 7-1-1994 in Oil Natural Gas Commission v. Collector of Central Excise (2004) 6 SCC 437 16. Whilst the principle and the object behind the aforestated Orders is unexceptionable and laudatory, experience has shown that despite best efforts of the CoD, the mechanism has not achieved the results for which it was constituted and has in fact led to delays in litigation. We have already given two examples hereinabove. They indicate that on same set of facts, clearance is given in one case and refused in the other. This has led a PSU to institute a SLP in this Court on the ground of discrimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with. 10. As per judgment in Oil Natural Gas Commission (supra), Hon'ble Supreme Court held that there should be no bar to the filing of appeal or petition so as to save limitation and wherever appeals/petitions are filed without clearance of the High Powered Committee so as to save limitation, the appellant or the petitioner shall, within one month of such filing, raise the matter to the High Powered Committee. In the judgment in Oil Natural Gas Commission (supra), Hon'ble Supreme Court observed as under: 5. It is also clarified that even the pending matters before any court or Tribunal should also be the subject matter of the deliberations of the High-Powered Committee. All the matters pending as of today either instituted by the Union of India or any of the Public Sector Undertakings shall within one month from today be referred by the appellant or the petitioner, as the case may be, to the High-Powered Committee. The High-Powered Committee will deal with these matters most expeditiously and endeavour to resolve the matters. 6. Accordingly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining 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. Having not been vigilant in either applying or obtaining COD clearance, the petitioner cannot take advantage of Electronic Corpn. of India Ltd. case (supra) judgment. 12. Pursuant to the judgment of Hon'ble Supreme Court in Electronics Corpn. of India Ltd. (supra), the Central Board of it issued instruction dated 24.3.2011 as follows: 3. In view of the above there is no requirement of obtaining approval of the Committee on Disputes for pursuing litigations as was being done. Field formations may now pursue their appeals in the respective Tribunals/Courts without obtaining clearance from the Committee on Disputes. Proposals which have already been sent to the Committee and no decisions have been taken till 17-2-2011 shall be deemed to be covered by the decision of the Hon'ble Court dated 17-2-2011, i.e. COD permission is not required in those cases. As per the above circular of Central Board of Excise, the proposal, which has already been sent to the Committee and where no decision taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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