TMI Blog2021 (2) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... RS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner : Mr. Amit Kumar Das, Advocate For the Respondents : Mr. Ashish Shekhar, A.C. to Mr. Amit Kumar, Adv ORDER Heard learned counsel for the petitioner Mr. Amit Kumar Das and Mr. Ashish Shekhar, assisting counsel to Mr. Amit Kumar for the respondent Central Excise 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 certificate from the Committee on Disputes. In the absence of any such certificate, we are unable to take up the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in (2016) 8 SCC 685, which was decided by the Apex Court reiterating that absence of such permission was not a fatal defect. What was restrained under the previous dispensation in the light of judgment of the three judges Bench by the Apex Court in the case of Oil and Natural Gas Commission and another Vs. Collector of Central Excise reported in 1995 Supp (4) SCC 541 was that progress in such suit, application or appeal till such time permission from COD was obtained shall remain restrained. The absence of permission from COD was not a mandatory legal requirement for institution of the suit. It is submitted that the learned Tribunal however, erroneously rejected the appeal on account of non-production of the clearance certificate from the COD. 5. Learned counsel for the petitioner has placed reliance upon a decision of this Court in the case of M/s National Buildings Construction Corporation Limited, New Delhi Vrs. Commercial of Central Excise Services Tax, Ranchi in Tax Appeal No. 29 of 2013 dated 10.12.2020 and submitted that in more or less similar circumstances the order passed by the learned CESTAT dismissing the appeal preferred by the appellant therein, only on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 Northern Coalfields Limited (Supra) is extracted herein below: 23. The net effect of the above can be summarized as under: 23.1. The Permanent Machinery of Arbitration was put in place as early as in March, 1989, even before ONGC-2 was decided on 11- 10-1991. 23.2. The Permanent Machinery of Arbitration was outside the statutory provision then regulating arbitrations in this country, namely, the Arbitration Act, 1940 (10 of 1940). 23.3. The award made in terms of the Permanent Machinery of Arbitration being outside the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Arbitrator made an award under the Permanent Machinery of Arbitration which was questioned in appeals before the Law Secretary who made some alterations in the same is also admitted. That the award so made has not been accepted by the appellants is also common ground inasmuch as the appellant has filed a suit challenging an arbitral award in Civil Suit No.1709 of 2000 in which the appellant claimed a declaration that the contracts were rendered null and void on account on the breach of Clause 3 thereof. The appellant also sought a declaration that the respondent company was not entitled to claim any relief under the said contract nor was respondent 2 entitled to do so and that the so- called arbitral award was vitiated on the face of record hence liable to be set aside. That such a suit could be filed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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