Application for restoration of appeal cannot be made where the appeal of PSU was dismissed earlier as COD had declined permission.

PJ/Case Laws/2012-13/1387

Case:- M/S BHARAT PETROLEUM CORPORATION LTD V/S COMMISSIONER OF CENTRAL EXCISE, MUMBAI-II

Citation:- 2013-TIOL-80-CESTAT-MUM

Brief Facts: - The present appeal has been filed by the appellant for restoration of the earlier appeal filed by them. The appellants are Public Sector Undertakings. The appeal was dismissed vide final order dated 15/12/2008 as the Committee on Dispute declined permission to pursue the appeal.

Appellant’s Contention: - The appellant relied upon the decision of the hon'ble Supreme Court in the case of Electronics Corporation of India ltd. vs. Union of India = (2011-TIOL-18-SC-CX-CB) and submit that now the order passed by the Hon'ble Supreme court in the case of ONGC has been withdrawn, therefore, there is no requirement for seeking permission from Committee on Dispute to pursue the appeal.

Reasoning of Judgment: - The Hon’ble Tribunal held that that the matter whether in view of the ECIL's decision of the Hon'ble Supreme Court (supra), instances where COD permission was not allowed in the past i.e., before 17.02.2011 to pursue the litigation before the Tribunal, be treated as not relevant, and such appeals either rejected or pending rejection by Tribunal for want of COD permission, be restored or be listed for hearing as the case may be, is now settled by the Larger Bench of the Tribunal in the case of M/s Burn Standard Co. Ltd. vs. CCE, Kolkata vide Order no. M-404/KOL/12 dated 25.07.2012 - [2012-TIOL-1974-CESTAT-DEL-LB]. The Tribunal, after relying upon the decision of the Hon'ble Delhi High Court in the case of Commissioner of Income Tax vs. Gas Authority of India ltd. vide order dated 13.02.2012, held that in case of permission has been already been declined by the Committee on Dispute prior to decision of the Hon'ble Supreme Court in the case of Electronics Corpn. Of India (supra) has not become a nullity and the matter which has been considered and decided by the Committee on Dispute cannot be reopened. In view of this decision of the Tribunal, they find no merit in the application for restoration of the appeal. ROA application is dismissed and as the ROA application is dismissed, the early hearing applications are also dismissed.

Decision: - The restoration of appeal application rejected.

Comment:-The analogy drawn from this case is that as the Committee of Disputes (COD) stands wound up w.e.f 17.02.2011 in view of decision given by SC in the case of ECIL so as of now PSU’s are not required to take permission before filing appeal but for the cases prior to 17.02.2011, the cases decided by COD cannot be reopened in light of the present provisions in this regard. Therefore, presently, there is no bar on PSU’s to file appeal.

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PJ/Case Laws/2012-13/1387

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