CESTAT allows restoration of appeal with penalty waiver, stay granted on penalty recovery

The CESTAT allowed restoration of the appeal application filed by the appellant seeking recall of the CESTAT order dated 28.08.2006. Despite a delay of almost 8 years in seeking restoration, the CESTAT permitted the restoration only in relation to the penalty aspect, based on the COD clearance provided. The appellant's stay application for waiver of pre deposit of penalty was granted, and the recovery of the penalty was stayed during the appeal's pendency. The appeal and stay application were disposed of accordingly.

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Issues:
1. Restoration of appeal application seeking recall of the CESTAT order dated 28.08.2006.
2. Time limit for seeking restoration of appeal.
3. Requirement of COD clearance for restoration of appeal.
4. Delay in seeking restoration of appeal.
5. Granting restoration of appeal only in relation to penalty.
6. Stay application for waiver of pre deposit of penalty.

Analysis:
1. The appellant filed a restoration of appeal application seeking recall of the CESTAT order dated 28.08.2006, stating that the COD application was available at the time of dismissal but not brought to CESTAT's notice. The appellant argued that there is no specific time limit for such restoration, citing the case of HPCL vs CCE Lucknow. The CESTAT order allowed restoration on production of necessary COD clearance without setting a time limit. The appellant's appeal was dismissed for lack of required permission to pursue the appeal, as mentioned in the ONGC vs CE, Calcutta case. However, the COD clearance granted permission only for the penalty aspect of the impugned order.

2. The Ld. DR argued against condoning the delay of almost 8 years in seeking restoration, despite no prescribed time limit. The CESTAT did not specify a time limit for seeking restoration based on COD clearance. Previous cases like HPCL vs CCE Lucknow and BHEL vs Commr. of Central Excise Bhopal allowed restoration in similar circumstances after significant delays.

3. The CESTAT order clearly stated that the appellant could apply for restoration on producing necessary COD clearance, without mentioning a time limit. The restoration was permitted only in relation to the penalty aspect, as per the COD clearance received. The argument that COD permission was no longer required based on the ONGC case was not accepted, as the specific provision in the impugned order required COD clearance for restoration.

4. Despite the delay in seeking restoration, the CESTAT allowed restoration only in relation to the penalty aspect, as per the COD clearance provided. The Registry was directed to list the appeal accordingly.

5. Regarding the stay application, the appellant had already deposited and appropriated the entire duty amount as per the impugned order. Therefore, the CESTAT granted a complete waiver of pre deposit of penalty and stayed the recovery of the penalty during the appeal's pendency. Both the restoration of appeal and stay application were disposed of accordingly.

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