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2016 (9) TMI 79 - CESTAT HYDERABAD

2016 (9) TMI 79 - CESTAT HYDERABAD - 2016 (340) E.L.T. 553 (Tri. - Hyd.) - Restoration of appeals - earlier dismissed for want of clearance from the Committee of Secretaries in 2006 - COD was received in May 2007 and appellant in end of 2014 ie., after more than 7 years of obtaining COD prayed for restoration of appeal as the appellants have now produced the COD clearance - no reason explaining the delay in filing the appeal even after obtaining the COD has been put forward by appellant - Held t .....

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astructure and facilities. This being so in our view, such enormous delay, that too unexplained even after giving opportunity for the same borders on the callous. As the appellant PSU having slumbered for so long cannot now wake up and obtain restoration of the appeal. This is precisely what the doctrine of laches propounds. Based on the maxim “vigilantibus et non dormientibus jura subviniunt” – The law aids the vigilant, not those who slumber on their rights. - Decided against the appellant - 4 .....

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The appeals were dismissed by the Tribunal vide Final Order No.471/2004 dated 25-02-2004 (relating to appeal no.822/2003) and vide Final Order No.1573 to 1578/2006 (inter alia relating to appeal no.411/2006), for want of clearance from the Committee of Secretaries, however granting liberty to seek restoration of the appeals as and when the clearance is produced. 2. The appellant filed application on 21.11.2014 (Appeal No.822/2003) and 07-10-2014 (Appeal No. 411/2006) and 07-10-2014 (Appeal No.41 .....

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he COD clearance. He placed reliance on the judgement rendered in HPCL Vs CCE, Lucknow-2009-TIOL-1149-Cestat-Del and M/s SAIL Vs CCE & ST, Raipur 2016-TIOL-1146-Cestat.Del. At this point, the learned AR Shri. Anish Gupta opposed the applications on the ground that in spite of heaving received the COD in May, 2007, the appellants have flied these restoration applications only in end of 2014 ie., after more than 7 years of obtaining COD. Further that appellants have not put forward any reason .....

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he appellant being Public Sector Undertaking clearance is required from the Committee of Secretaries. It was brought to our notice that no clearance from committee of Secretaries has been placed on record. It is settled position now that the matters relating to Public sector Undertakings cannot be proceeded with unless clearance is produced, as observed by the supreme court in the case of ONGC reported in 1992(64) ELT page 3 as well as in its clarificatory judgment reported in 1974(70) ELT 45. I .....

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year 2014 ie., after more than seven years. As rightly pointed out by the learned AR these restoration applications are not accompanies by an affidavit explaining the reasons for the delay. During the hearing the learned Counsel for appellant requested on more adjournment to file an affidavit on the side of party giving the reasons for delay. At the cost of repetition, it has to be stated that these applications were filed in 2014 with delay of more than seven years. The matter came up before th .....

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at the Tribunal ought not to have dismissed the appeal for non production of COD. We are not inclined to go behind the Final Order passed by Tribunal which was not appealed against and has attained finality. The Tribunal had given liberty to the appellant to file restoration application on receiving the COD. This being so the restoration application has to be accompanied by clearance from COD. The clearance from COD having received in 2007 the appellants ought to have filed the appeal within rea .....

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the Tribunal cannot be a ground for rejection. We find that the Tribunal Order relied upon the appellant, is clear from para 6 where the learned advocate for the appellant therein on his own request had sought time to file an affidavit explaining the cause for delay in filing the application for restoration, and had indeed filed such affidavit. This is certainly not the case before us. As already discussed supra when the matter had earlier come up before us on 20-06-2016, on the request of the .....

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led after 8 years along with COD. On perusal of this judgment, it is pertinent to note that the Tribunal in the said case had taken note of the fact that the clearance by COD was given only to contest the imposition of penalty. It is emphasized in the order that appellant can contest only the imposition of penalty. The merits of the case/main issue would not be disturbed. The Tribunal also noted that the appellant therein had deposited the entire amount of duty. This is not the situation in the .....

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ourt of Gujrat in Ablaze Process Systems referred to supra were the Hon ble Court has held as follows: Heard learned counsel for the respective parties and perused the documents on record. The order of CEGAT, Mumbai dismissing the appeal for non-compliance U/s 35F of the Central Excise Act, 1994 was passed on 12-12-1997 and the Misc. application praying to restore the said appeal came to be preferred only on 28-11-2008 ie after a period of more than ten years. To revive the appeal after a gap of .....

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g the restoration application as is the case in this matter. Therefore, the said decision will not apply to the present case. 11. Similar view has been made by Tribunal in the case of Kirtikumar J Shah 2009 (242) ELT 222 (Tri-Mum) the relevant portion is extracted as under : 7. The application under consideration apart from stating that it was on account of financial position that the appellant could not deposit the amount in time, neither the facts disclosed which could reveal an attempt o .....

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he appeal had come up for hearing and was dismissed. 8. Considering the fact that the appeal relates to the year 2004, and failure on the part of the appellant to disclose reasons for absence of the appellant or representative before the Tribunal on the relevant dates when the matter came up for hearing apparently discloses lethargy and lack of efforts on the part of the appellant to pursue the matter diligently. Apparently, therefore, there is neither any sufficient cause disclosed for the .....

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for filing the application for restoration of the appeal dismissed either for non compliance of the provisions of Section 35F of the Central Excise Act, 1944 or otherwise. Further, under no stretch of imagination, there could be a justification to file an application at the sweet will of the applicant. Since the original period for filing the appeal is itself described as three months, the application for restoration will have to be filed within the maximum period of three months from the dismis .....

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