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TMI Blog2021 (2) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... and Custom Department. 2. Petitioner's appeal no. E/3796/03 preferred against the order dated 11.09.2003 passed by the Commissioner, Customs and Central Excise (Appeals), Nagpur in appeal no. 286 of 1999 was dismissed by the learned Customs Excise & Service Tax Appellate Tribunal (CESTAT), West Zonal Bench at Mumbai by the order dated 17.02.2011(Annexure-5), impugned herein holding as under: "When this matter was called out, none appeared on behalf of the appellants. There is a request for adjournment from the accountant of the appellants. 2. On a perusal of the record, we find that the appellant is government of India undertaking, which is indicated on the letter head. If that is so, they are supposed to file clearance certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers Limited was still pending before the CESTAT. The impugned order has been passed thereafter on the appeal preferred by the petitioner against the order of Commissioner (Appeals). 4. Learned counsel for the petitioner submits that the appeal has been rejected by the learned CESTAT on the sole ground that petitioner had not been able to produce the clearance certificate from the Committee on Disputes (COD). However, the learned Tribunal granted liberty for making an application for restoration as and when the petitioner gets certificate from the COD. Learned counsel for the petitioner submits that the requirement of obtaining clearance from the COD was done away with by the Constitution Bench decision of the Apex Court in the case of Elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... COD at the time of filing of appeal and till its disposal, was held to be not justified in law. Reliance has also been placed on the decision of the Apex Court in the case of Electronics Corporation of India Limited (supra) and Northern Coalfields Limited (supra). It is submitted that the impugned order may be set aside so that petitioner may have the liberty to approach the learned CESTAT for restoration of the appeal and hearing on merits. 6. Learned counsel for the respondent department has submitted that the order of the learned Tribunal was dismissed both on account of non- appearance of the appellant and on failure to produce the clearance certificate from the COD. However, learned Tribunal had granted liberty to the appellant to see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter corporation dispute or dispute between PSU and Ministry of Government, the aggrieved party could file a suit or a case or appeal before a Tribunal/ Court of Law but the only rider was that the concerned Tribunal or Court could not proceed with the suit so long the COD permission was not taken. This prohibition or rider in proceeding with the case or suit by a Tribunal or a court of law was lifted by virtue of the Constitution Bench decision in the case of ECIL (Supra) vide judgment dated 17th February, 2011. The legal position rendered by Hon'ble Supreme Court in the case of ECIL (supra) was further clarified in the case of Northern Coalfields Limited (Supra). The opinion of the Apex Court at para no. 23 to 25 in the case of Norther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was required to grant permission for instituting or pursuing the proceedings. If the High-Powered Committee (COD) was unable to resolve the dispute for reasons to be recorded by it, it was required to grant clearance for litigation. 23.7.The Committee on Disputes' experience was found to be unsatisfactory and the directives issued by the Court regarding its constitution and matters incidental thereto were recalled by the Constitution Bench of this Court thereby removing the impediment which was placed upon the court's/tribunal's powers to proceed with the suit/ legal proceedings. The Department of Public Enterprises has subsequent to the recall of the orders in the ONGC line of cases modified its guidelines deleting the requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d but could not be proceeded with till such time the CoD granted permission is also beyond dispute as on the date of the institution of the suit the direction of this Court in ONGC group of cases still held the field. Such permission could be obtained within 30 days which was not sacrosanct but the institution of the suit itself could not be faulted as a litigant was in terms of the direction of this Court entitled to institute the proceedings to save limitation. The High Court has, all the same, rejected the plaint on the ground that permission from CoD was not obtained. In doing so the High Court obviously understood the direction of this Court to mean as though absence of such permission was a fatal defect which it was not. The orders of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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