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2016 (6) TMI 358 - GUJARAT HIGH COURT

2016 (6) TMI 358 - GUJARAT HIGH COURT - 2016 (344) E.L.T. 818 (Guj.) - Seeking revival of appeals - tribunal dismissed the revenue appeal for requirement of approval/clearance of the Committee on Disputes (COD) - Now as per decision of Supreme Court in the case of Electronics Corporation of India Limited v. Union of India and others [2011 (2) TMI 3 - Supreme Court], the approval/clearance is no longer required - COD had not taken any decision either for granting or rejecting the application. - .....

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f the COD was obtained. However, for the reasons set out hereinabove, the COD does not appear to have decided the applications filed 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 .....

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ause huge amount of public money is involved. - Decided in favour of applicant - MISC. CIVIL APPLICATION (OJ) NO. 210 of 2015 In TAX APPEAL NO. 1455 of 2007, MISC. CIVIL APPLICATION (OJ) NO. 211 of 2015 In TAX APPEAL NO. 1 of 2010 - Dated:- 12-4-2016 - MS. HARSHA DEVANI & MR. G.R.UDHWANI JJ. For the Appellant: Mr. Varun K. Patel, Advocate For the Respondent: Mr. Anand Nainawati, Advocate Oral Judgment (Per : Ms. Harsha Devani) 1. Rule. Mr. Anand Nainawati, learned advocate waives service of .....

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g rise to the present applications are that Tax 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 .....

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f 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. Collector of Central Excise, 1992 (61) ELT 3 (SC), wherein it was held that it shall be the obligation of every court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in .....

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s for such approval and that the office was reminding the Board for early clearance. In the light of the fact that the approval had not been granted, this court by an order dated 30.09.2010, dismissed the appeals with liberty to apply for revival as and when clearance is obtained from the Committee. 6. Subsequently, the Supreme Court in the case of Electronics Corporation of India Limited v. Union of India and others, (2011) 3 SCC 404, has recalled the directions given by it in the case of Oil a .....

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ired by the applicant for filing or pursuing the tax appeals, the applicants have moved the present applications seeking recall of the order dated 30.09.2010 passed in the captioned appeals and seek revival of the said tax appeals. 7. In response to the application, the respondent has filed an affidavit-in-reply setting out the sequence of dates and events giving rise to the present miscellaneous civil applications. It is pointed out that the tax appeals had been filed by the Department without .....

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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 di .....

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accepting it or rejecting it. That on 17.02.2011, the Supreme Court pronounced its judgement in Electronics Corporation of India Limited v. Union of India and others (supra) to the effect that no clearance from the COD is required for filing the appeals. Pursuant thereto, the Central Board of Excise and Customs issued Circular No.390/R/262/09-JC dated 24.03.2011 informing that no clearance is required to pursue the appeals before various forums where the applications are already made on or befor .....

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ed that the applicant has failed to explain in their applications as to what is the reason for the delay in applying for such revival application belatedly i.e. after more than three years, which is beyond the normal period of limitation and that the applicants have also not brought on record the fact as to when the application before the COD was made by them. 8. The applicant has filed an affidavit-in-rejoinder to the averments made in the affidavit-in-reply wherein, it has been stated that the .....

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to revive the appeals as and when the clearance was obtained from the COD. However, as stated in the memorandum of applications, till the filing of the present miscellaneous civil applications, the Department has not received any communication 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 co .....

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n 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 also submitted that subsequently, the Tribunal dismissed the abo .....

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t of clearance from COD. However, due to the aforesaid bona fide belief that appropriate communication would be received from the COD, as also due to frequent transfers/change of officers (for example, the then concerned Additional Commissioner (Legal) had been transferred to Bombay in February 2012 and thereafter about three or four Additional Commissioners (Legal) have taken charge of the said post), the miscellaneous civil applications could not be filed earlier. It is further the case of the .....

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he affidavit-inrejoinder for not filing the miscellaneous civil applications at an earlier date. It was submitted that having regard to the above facts, it is evident that the miscellaneous civil applications could not be actuated by any mala fide or extraneous reasons. The applicant has a good case on merits and if the miscellaneous civil applications are not allowed, huge financial loss would be caused not only to the applicant revenue, but also to the public exchequer. Moreover, the dismissal .....

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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 substituti .....

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rt in the case of State of Karnataka v. Y. Moideen Kunhi, (2009) 13 SCC 192, wherein placing reliance upon its earlier decisions in the cases of State (NCT of Delhi) v. Ahmed Jaan, (2008) 14 SCC 582; Nand Kishore v. State of Punjab, (1995) 6 SCC 614; G. Ramegowda v. Special Land Acquisition Officer, (1988) 2 SCC 143, the court had condoned the delay of nearly 6500 days, subject to payment of exemplary costs. Reliance was also placed upon the decision of the Supreme Court in the case of State of .....

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and Acquisition Officer (supra) and observed that regarding the matter of delay in that case, it was inclined to observe that the malfunctioning of the State Government regarding the unpardonable lackadaisical attitude towards pursuing the matter in the court of law cannot be the reason for loss of public property, which involves public money and causes loss to the public exchequer. The court, therefore, felt that it was a fit case to exercise its discretionary power to condone the delay in fili .....

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olved. The learned counsel for the applicant submitted that huge amounts are involved in these appeals and that the impugned order is being followed by the Tribunal in other matters causing immense prejudice to the revenue. It was submitted that having regard to the fact that huge amount of public money is involved, the delay caused in filing the applications is required to be condoned. 12. Vehemently opposing the applications, Mr. Anand Nainawati, learned advocate for the respondent submitted t .....

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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 pr .....

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und alone. 12.1 In support of his submissions, Mr. Nainawati placed reliance upon the decision of the Supreme Court in the case of Office of the Chief Post Master General v. Living Media India Ltd., 2012 (277) ELT 289 (SC), wherein, the court has held that it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual expla .....

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re was no proper explanation offered by the Department for the delay except mentioning of various dates, the court formed the opinion that the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay of 427 days. 12.2 Reliance was also placed upon the decision of the Jharkhand High Court in the case of Hindustan Copper Ltd. v. Union of India, 2014 (307) ELT 662 (Jhar.) wherein, the court after referring to the decision of the Supreme Court .....

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ce 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. 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 a .....

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ng 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 view that the view taken by the Larger Bench of the Tribunal that the COD permission was not required in cases which were pending for COD clearance as on 17.02.2011, and that admittedly, the appeal was filed by the petitioner therein on 14.10.2009 without any COD clear .....

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ss negligence on the part of the Department, and which could not be condoned and that, the explanation was routine and lacking in bona fides and accordingly, rejected the application. 12.3 It was submitted that in the facts of the present case also, nothing has been brought on record to show that the applicant had approached the COD for obtaining clearance. Referring to the circular dated 24.3.2011, it was submitted that in terms of the said circular, the proposals which have already been sent t .....

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. It was, accordingly, urged that the present applications having been filed after an inordinate delay, are required to be rejected. 13. The facts are not in dispute. The captioned tax appeals have been preferred against the common order dated 30.04.2007 passed by the Tribunal. At the relevant time, there was a delay in filing the Tax Appeal No.1 of 2010, which came to be condoned by this court. When the appeals came to be listed for hearing on 29.04.2010, the court adjourned the appeals to 30.0 .....

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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. Accor .....

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been filed in July, 2015, after a delay of more than four years. From the facts noted hereinabove, it appears that subsequent to the decision of the Supreme Court in the case of Electronics Corporation of India Limited v. Union of India and others (supra), the Central Board of Excise and Customs had issued a circular dated 24.03.2011 informing all concerned that there is no requirement for obtaining approval of the Committee on Disputes for pursuing the litigations as was being done and that fie .....

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pplicant did not take any steps to seek revival of the appeals. 16. It may be noted that the Supreme Court in the case of Oil and Natural Gas Commission v. Collector of Central Excise (supra), has held that it shall be the obligation of every court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with. Thus, what was barred was proceed .....

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e backdrop, it emerges that the applicant had moved Central Board of Excise and Customs for doing the needful for obtaining clearance from the COD and it was awaiting a response from the COD giving appropriate clearance/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, .....

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ications 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 case, the court had taken note of the fact that on 17.02.2011, that is, the date of .....

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vit-in-rejoinder, has placed on record a communication dated 28.04.2010 addressed to the Central Board of Excise and Customs, New Delhi to do the needful for obtaining necessary clearance. Thereafter, before this court, on 30.09.2010, when the appeals came up for hearing, the learned advocate for the applicant had placed on record a communication dated 29.09.2010 of the Additional Commissioner (Legal), Central Excise and Customs, Surat-1 addressed to the learned counsel informing him that the of .....

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at the application was still pending before the COD on the date when the decision came to be rendered in the case of Electronics Corporation of India Limited v. Union of India and others (supra). 19. While it is true that there is a considerable delay in filing the present applications, in the opinion of this court, the reasons put forth by the applicant in the affidavit-in-rejoinder for the delay caused in filing the applications, are plausible and acceptable. In the present case, strictly spea .....

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onger 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 hug .....

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