TMI Blog2018 (12) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2006 against the order passed by the jurisdictional Commissioner only for want of clearance from COD. Even when there was no COD clearance granted, the Tribunal had no jurisdiction and authority under the law to dismiss the appeal for want of COD and then to require the parties to apply restoration upon obtaining clearance. The only permissible course of action was to keep the appeals pending without further proceedings, awaiting submission of COD clearance which was required to be granted once the attempts to resolve the dispute failed. The learned Tribunal has dismissed the applications for restoration on the ground that the applications for restoration were filed after a long delay. The Tribunal was not correct in doing so. Present is not a case where the appeals were dismissed for want of prosecution or for want of mandatory pre-deposit. It is also not a case where the appellant did not file any appeal and the appeal itself was filed after a long delay. Once it is held that the Tribunal had no jurisdiction to dismiss the appeal on the ground of want of clearance from COD, it was the duty of the Tribunal to restore the appeals to undo the injustice caused to the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in the said decision, it was no longer necessary for any aggrieved party to obtain COD before availing statutory remedy of appeal against the orders passed by the jurisdictional Commissioner in the matter of demand of excise duty, penalty, interest etc. The appellant herein filed three restoration applications in three appeals which were earlier dismissed by the Tribunal for want of COD clearance. By the impugned common order, the restoration applications in three different cases filed by the appellant were rejected, giving rise to aforesaid three appeals. 3. While admitting the appeals, following substantial question of law for determination has been framed in each of the appeals:-. Whether in view of the judgment passed by Hon'ble the Supreme Court in the matter of Electronics Corporation of India Ltd. Vs. Union of India, 2011 (265) ELT 11 (SC), the Tribunal has wrongly refused to restore the appeals preferred by the appellant on the ground of limitation ? 4. Learned counsel for the appellant argued in extenso to submit that firstly, even assuming that earlier requirement of obtaining clearance from COD in terms of guidelines issued by the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cember 2006 respectively of the Tribunal dismissing appeals for want of COD clearance. Had the denial of COD clearance been brought to the notice of the Tribunal at the time of passing of final order, the result would have been the same and even opportunity would not have been granted for production of necessary clearance. He further submitted that as far as third case is concerned, COD clearance was actually given on 18.12.2007, but even then the appellant did not take any steps to get the appeal restored in time and filed restoration application after almost 10 years without any explanation. He would submit that at the time when the order was passed by the Tribunal, it was completely within its jurisdiction and permissible under the law to dismiss the appeal for want of clearance from COD, though, with liberty to seek restoration as and when clearance is granted. For this purpose, learned counsel for the respondent placed reliance upon Mahanagar Telephone Nigam Ltd. Vs. Chairman Central Board, Direct Taxes and Anr. (2004) 6 SCC 431. 6. We have heard learned counsel for the parties and perused the records of the case. 7. In the matter of disputes between Oil and Natural Gas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on every Court and Tribunal where such a dispute is raised, to demand a clearance from the COD and in case it has not been so pleaded and in the absence of the clearance, not to proceed with the case. Later on, a clarification was also issued on 7.1.1994 in the aforesaid case (ONGC Vs. Collector of Central Excise) to the following effect:- 5. Accordingly, there, should be no bar to the lodgment of an appeal or petition either by the Union of India or the Public Sector Undertakings before any court or tribunal so as to save limitation. But, before such filing every endeavor should be made to have the clearance of the High Power Committee. However, as to what the court or tribunal should do if such judicial remedies are sought before such a court or tribunal, the order of 11th October 1991 clarifies : 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. 6. Wherever appeals, petitions etc. are filed without the clearance of the High Power Committee, so a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Some doubts persist as to the precise import and implications of the words and recourse to litigation should be avoided . It is clear that order of this court is not to effect that -- nor can that be done---so far as Union of India and its statutory corporations are concerned, the statutory remedies are effaced. In deed, the purpose of the Constitution of the High Power Committee was not to take away those remedies. ...... 11.In Canara Bank Vs. Power Grid Corporation of India Ltd. 1997 (96) ELT 37 (Del.), the Delhi High Court examined the legal position in the light of the direction issued by the Supreme Court in ONGC's case. It was held that for want of clearance, the petition could not be dismissed but it was to be kept pending awaiting reconciliation of dispute or clearance. It was also held that in view of subsequent order of the Supreme Court in ONGC's case, it was not within the jurisdiction of high power committee to refuse clearance as it had only two options either to resolve the dispute or to grant clearance for litigation. 12.The aforesaid legal position has been clearly settled by the Supreme Court in its recent decision in the case of Northern C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guidelines deleting the requirements for a COD clearance for resorting to the Permanent Machinery of Arbitration and; 23.8. The Permanent Machinery of Arbitration was and continues to be outside the purview of Arbitration Act, 1940 now replaced by Arbitration and Conciliation Act, 1996. 13.From the aforesaid consideration, we are of the firm view that it was not at all permissible by the Tribunal to dismiss appellant's appeal filed in year 2006 against the order passed by the jurisdictional Commissioner only for want of clearance from COD. Direction of the Supreme Court in ONGC's case never empowered the Tribunal or for that matter, any other Court to dismiss the appeal only on the ground that COD clearance was not obtained. As has been examined herein-above, the only course open for the Tribunal was to keep those appeals pending till clearance was obtained. The Committee had only two courses open to it. Firstly, to resolve the dispute and if ultimately resolution of dispute between the Government of India and Public Sector Undertaking fails, to grant clearance. Irrespective of the two situations, under no circumstance, it was open for the Tribunal to dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dispute, it is thus expected that their decision will be fair and honest. Even if the Department/Public Sector Undertaking finds the decision unpalatable, discipline requires that they abide by it. Otherwise the whole purpose of this exercise will be lost and every party against whom the decision is given will claim that they have been wronged and that their rights are affected. This should not be allowed to be done. It was clearly held that the High Powered Committee (COD), if it can, will resolve the dispute and if the dispute is not resolved, the Committee shall undoubtedly give clearance. A pertinent observation was made to deal with cases of exceptional nature that there could also be frivolous litigation proposed by a department of the Government or a public sector undertaking which could be prevented by the High Powered Committee and that in such cases, there is no question of resolving the dispute. On facts, present appeals are not such cases where the Committee of Dispute had opined that the appellant seeks to raise frivolous dispute. Therefore, the settled legal position as adumbrated in series of decisions of the Supreme Court, referred to herein-above, would h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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