2012 (10) TMI 380 - AT - Central Excise

Restoration of Appeal Dismissed Without COD Clearance Post ECIL Judgment

BURN STANDARD CO. LTD. Versus COMMISSIONER OF C. EX., KOLKATA-II

The case involved the restoration of an Appeal dismissed for lack of clearance from the Committee on Disputes (COD) post the Electronics Corporation of ... Restoration of the Appeal – appeal dismissed earlier for want of clearance from the Committee on Disputes – Held that:- Once it is apparent that merely on the ground of refusal of the permission by the Committee on Disputes, the appeal could not have been dismissed and yet the appeal was dismissed solely on the said ground, as rightly pointed out on behalf of the department, such an order deserves to be recalled Issues Involved:1. Restoration of Appeal dismissed for want of clearance from the Committee on Disputes (COD).2. Interpretation of the judgment of the Hon'ble Supreme Court in the case of Electronics Corporation of India Ltd. (ECIL) v. Union of India.3. Relevance of COD permission in pursuing litigations post the ECIL judgment.4. Disagreement between different Tribunals on the applicability of the ECIL judgment to cases rejected by COD in the past.5. Request for reference to a Larger Bench to resolve the legal issue.Analysis:Issue 1: Restoration of Appeal dismissed for want of COD clearanceThe Applicant, a Public Sector Undertaking, filed a Misc. Application for restoration of an Appeal dismissed earlier due to lack of clearance from COD. The Appeal was against an Order-in-Original passed by the Commissioner of Central Excise. Despite multiple unsuccessful attempts to obtain COD permission, the Applicant sought restoration based on the ECIL judgment recalling earlier judgments. The legal issue of restoring dismissed Appeals was considered crucial by the Bench due to its public importance.Issue 2: Interpretation of the ECIL judgmentThe Applicant's Advocate argued that the Circular issued by C.B.E.C. post the ECIL judgment allowed Appeals to proceed without COD clearance. The Commissioner, however, contended that the Circular only applied to cases where COD permission was pending as of a specific date. The Commissioner highlighted the Supreme Court's observation that the COD mechanism had outlived its utility, suggesting a shift in the approach to COD permissions.Issue 3: Relevance of COD permission post-ECIL judgmentThe debate revolved around whether cases rejected by COD in the past could be reopened post the ECIL judgment. The Senior Counsel argued that the mechanism of COD permission deviated from statutory appeal rights and should be abandoned, leading to the restoration of previously dismissed Appeals. The Commissioner emphasized that the Circular clarified the non-requirement of COD permission for pending cases as of a specific date, rendering the Applicant's subsequent COD application irrelevant.Issue 4: Disagreement between TribunalsThe Mumbai Bench's opinion differed from the Kolkata Bench regarding the retrospective application of the ECIL judgment. While the Mumbai Bench allowed restoration of Appeals rejected by COD pre-ECIL judgment, the Kolkata Bench disagreed. This disagreement prompted the Kolkata Bench to refer the matter to a Larger Bench for resolution, questioning the treatment of cases where COD permission was not allowed in the past.Issue 5: Request for reference to a Larger BenchGiven the conflicting interpretations and the importance of the legal issue, the Bench decided to refer the matter to a Larger Bench for resolution. The question of law posed for reference was whether cases where COD permission was not allowed before a specific date should be considered irrelevant post the ECIL judgment, leading to the restoration or listing for hearing of such Appeals.In conclusion, the judgment highlighted the evolving landscape of COD permissions post the ECIL judgment, the differing interpretations among Tribunals, and the need for a Larger Bench to resolve the legal issue of restoring Appeals rejected for want of COD clearance.