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TMI Blog2016 (6) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No.1455 of 2007 came to be filed against the order No.A/919 and 920/WZB/AHD/07 dated 30.04.2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (hereinafter referred to as "the Tribunal") in Appeals No.E/2434/2002 and No.E/1256/2004. Against the said order, the applicant - Department was required to file two separate tax appeals, however, instead of filing two separate appeals, the department had filed only one tax appeal being Tax Appeal No.1455 of 2007 before this court challenging the common order dated 30.04.2007. When the Tax Appeal No.1455 of 2007 came to be listed for hearing on 02.03.2009, the above mistake came to be noticed and hence, the department was informed about the same whereafter, a decision was taken for filing another appeal before this court. Accordingly, Tax Appeal No.1 of 2010 came to be filed before this court together with a separate application for condonation of delay being Civil Application No.237 of 2009, which came to be allowed by order dated 24.12.2009. 5. By an order dated 29.04.2010, this court took note of the decision of the Supreme Court in the case of Oil and Natural Gas Commission v. Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission v. Collector of Central Excise (supra) and that even after three years of the filing of the tax appeals, the Department did not make any effort to approach the COD for clearance of filing of the tax appeals. It is averred that both the appeals were scheduled for hearing on 29.04.2010 and it was only on 28.04.2010 that the applicant had forwarded the request to the Central Board of Excise and Customs to obtain clearance from the COD and forwarded the desired application for further submission. That on 29.04.2010, when the matter was called out for hearing, the appeals were adjourned for want of clearance and it was informed to the High Court that necessary steps were being taken to obtain clearance from the Committee and the appeals were, thus, adjourned to 30.09.2010 on which date, since the clearance was not obtained, the High Court has dismissed the appeals for want of clearance with liberty to the Department to apply for revival as and when clearance was obtained from the Committee. It is further the case of the respondent that in view of the order dated 30.09.2010, liberty for revival of appeal was subject to the condition that the applicant herein should get the clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion from the concerned Committee, either granting permission or rejecting the same for pursuing both the tax appeals. 9. It is further stated that the Department has taken necessary steps for getting clearance from the COD at the relevant time, however, no communication was received from the COD either rejecting or granting clearance for pursuing the tax appeals. It is submitted that the applicant Department was under the bona fide belief that a communication would be received from the concerned COD on the aforesaid application of the Department for pursuing the tax appeals. However, when the appeal being Appeal No.E/1167/2000, filed by the applicant against the present respondent involving identical issues, came up for hearing before the Tribunal in mid - 2015 and the respondent cited the order of the Tribunal impugned in the present tax appeals, it was realized that appropriate steps are required to be taken for revival of the tax appeals in view of the decision of the Supreme Court in Electronics Corporation of India Limited v. Union of India and others (supra). Immediately thereafter, the Department has decided to prefer the present miscellaneous civil applications. It is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h v. Jagdish Kumar, (2005)3 SCC 186, wherein the court had condoned the delay of 680 days in preferring the petition. The court observed that the interest of justice would not be served by refusing to condone the delay, the consequence of which would be to perpetuate an illegal order and accordingly, condoned the delay. Reliance was also placed upon the decision of the Supreme Court in the case of Nagina Singh v. Naga Singh, (2002)7 SCC 113, wherein though there was a serious dispute as to the date of death of the original appellants therein, the court was of the considered view that in the facts and circumstances of the case, the application for substitution of legal representatives of the said appellants should not have been rejected, having regard to the fact that all the contesting parties were on record and those appellants were brought on record only as legal representatives of appellant No.1 therein who had died during the pendency of the appeal. The court observed that the parties had litigated since the year 1974 and it was only fair that there should be adjudication on merits. Reliance was also placed upon the decision of the Supreme Court in the case of State of Karnatak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Anand Nainawati, learned advocate for the respondent submitted that in this case, the court is dealing with the issue of restoration of appeals for which the limitation is thirty days. It was submitted that the case of Electronics Corporation of India Limited v. Union of India and others (supra) was decided by the Supreme Court in February, 2011 and immediately thereafter, the Central Board of Excise and Customs has issued instructions dated 24th March, 2011 drawing the attention of all concerned to the above decision of the Supreme Court and informing them that in view thereof, there is no requirement of obtaining approval of the Committee on Disputes for pursuing the litigations as was being done. It was pointed out that despite the aforesaid position, the applicants did not take any action and were negligent in taking steps for revival of the appeals. It was submitted that it was only because another appeal involving a similar controversy came up before the Tribunal, that the applicants woke up from their slumber and took steps for filing the present applications for revival. It was urged that though the court had granted liberty to apply for revival, such liberty should be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. The court observed that in the facts of the case before it, the appeal was filed in 2009 and hence, as per ONGC-III, (2004) 6 SCC 437, the petitioner should have approached COD for obtaining clearance within one month after such filing. However, even though the appeal was pending from 2009-2012, the petitioner had not approached COD for obtaining clearance. As on the date of the judgment in Electronics Corporation of India Limited v. Union of India and others, i.e. 17.2.2011, the petitioner had neither obtained COD clearance, nor produced evidence showing that it had approached COD for obtaining clearance. That it was 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. The court held that having not been vigilant in either applying or obtaining COD clearance, the petitioner could not take advantage of Electronics Corporation of India Limited v. Union of India judgment. The court referred to the circular issued by the Central Board of Excise and was of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el Empowered Committee set up pursuant to the directions issued by the Supreme Court in Oil and Natural Gas Commission v. Collector of Central Excise, 1992 (61) ELT 3 (SC), for preferring the appeals. Since the appeals had been filed without prior approval of the Committee and such approval was not granted by 30.09.2010, the court had dismissed the appeals with liberty to the appellant to apply for revival as and when clearance is obtained from the Committee. 14. It appears that during the pendency of the applicant's application for permission to prefer the appeals, the Supreme Court in Electronics Corporation of India Limited v. Union of India and others (supra) recalled the directions given in the above referred case as a consequence whereof, now there is no requirement of obtaining prior approval of the Committee on Disputes for pursuing litigations. Accordingly, the appellant is now not required to obtain clearance of the COD for pursuing the tax appeals and has filed these applications for revival of the appeals. 15. As is evident from the rival contentions, there is a considerable delay in filing the present applications, inasmuch as, the decision of the Supreme Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e/approval for pursuing the appeals, however, there was no response thereto. In the meanwhile, there were frequent transfers/change of officers in the concerned Department. It appears that, therefore, pursuant to the instructions issued by the Board vide circular dated 24.03.2011, no steps could be taken at the relevant time for seeking revival of the appeals. However, when another appeal of the respondent - assessee, on a similar set of facts, came up before the Tribunal for hearing, it came to the notice of the concerned officers of the applicant that the present appeals are required to be revived. It is thereafter that the necessary steps have been taken by the applicant for seeking revival of the appeals. However, there is considerable delay in filing the present applications if considered from the date of the decision of the Supreme Court in the case of Electronics Corporation of India Limited v. Union of India and others (supra). 18. On behalf of the respondents, strong reliance has been placed upon the decision of the Jharkhand High Court in the case of Hindustan Copper Ltd. v. Union of India (supra), wherein the Tribunal has dismissed the appeal. In the facts of the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the applicant and now in the light of the decision of the Supreme Court in the case of Electronics Corporation of India Limited v. Union of India (supra), such requirement is no longer necessary. Insofar as the applicant is concerned, it was only when a similar appeal came up for hearing before the Tribunal and the Tribunal followed the earlier decisions which were subject matter of challenge in the captioned appeals, that it came to the notice of the concerned officer that the present appeals are required to be revived and accordingly, the present applications for revival came to be moved before this court. Considering the overall facts of the case and the fact that huge amount of revenue is involved in the present appeals, as rightly submitted by the learned counsel for the applicant, the delay is required to be condoned, more particularly because huge amount of public money is involved. 20. The decision of the Supreme Court in the case of Office of the Chief Post Master General v. Living Media India Ltd. (supra), in the opinion of this court, would not be directly applicable in the facts of the present case because this is not a case wherein the delay had been caused on a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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