2012 (12) TMI 42 - AT - Central Excise

Tribunal Restores Appeal, Dismisses Stay Application as Infructuous

The Tribunal allowed the application for restoration of the appeal and reinstated it along with the stay application. The counsel for the appellant ... Recall of precedent - requirement of Committee permission for PSUs - restoration of statutory right of appeal - appeal restoration - stay application rendered infructuous by deposit of entire duesRecall of precedent - requirement of Committee permission for PSUs - restoration of statutory right of appeal - appeal restoration - Whether an appeal dismissed for want of clearance from the Committee of Secretaries is liable to be restored after the Supreme Court recalled earlier decisions requiring PSUs to obtain such permission - HELD THAT: - The Tribunal held that the Supreme Court in ECIL recalled its earlier judgments which had imposed a requirement on PSUs to obtain permission from the empowered Committee to pursue appeals before the Tribunal. Where the Committee had earlier declined permission and the appeal was dismissed on that ground, the subsequent recall of those precedents removed the fetter on the statutory right of appeal. A coordinate Bench's decision in ONGC, involving similar facts, applied this principle to restore the appeal. The contrary coordinate Bench decision (BHEL) relied upon by the department was rendered before the Supreme Court's decision in ECIL and therefore does not assist the department. The Tribunal also relied on authority examining the effect of recall of a judgment/order, holding that a recalled judgment is effaced for practical purposes. On these grounds the Tribunal concluded that the appellant's statutory right of appeal stands restored and the dismissal for want of Committee clearance must be recalled. [Paras 2, 3]The application to restore the appeal is allowed and the appeal is restored to its original number.Stay application rendered infructuous by deposit of entire dues - Whether the stay application should be maintained where the appellant has deposited the entire amount of duty with interest - HELD THAT: - Counsel for the appellant informed the Tribunal that the entire duty with interest had been deposited. This factual position was not contested by the department. Given the uncontroverted deposit of the entire liability, the Tribunal found the stay application to be infructuous and liable to be dismissed. [Paras 4]The stay application is dismissed as infructuous.Final Conclusion: The application to restore the appeal is allowed and the appeal is restored; the stay application is dismissed as infructuous in view of the unchallenged deposit of the entire duty with interest. Issues:Restoration of appeal dismissed for want of clearance from Committee of Secretaries.Analysis:The appellant filed an application seeking restoration of their appeal, which was dismissed due to lack of clearance from the Committee of Secretaries. The appellant argued that the Hon'ble Supreme Court's judgment in the case of ECIL did away with the requirement of Committee permission for PSUs. A coordinate Bench of the Tribunal had also supported this view. The Addl. Commissioner (AR) referred to a different case where the application to recall the order of dismissal was rejected as the Committee had declined permission. The Tribunal noted the Supreme Court's decision in the ECIL case, which recalled the requirement of obtaining permission from the Committee for PSUs. Considering this, the Tribunal found that the statutory right of appeal stands restored without any such restriction for the present appellant. The Tribunal distinguished the case cited by the Addl. Commissioner (AR) as it was decided before the Supreme Court's judgment in the ECIL case. The Tribunal also referred to a judgment of the Allahabad High Court, which held that with a recall of judgment or order, it is effaced for all practical purposes.Outcome:The Tribunal allowed the application for restoration of the appeal and reinstated it along with the stay application. The counsel for the appellant mentioned that the stay application was no longer relevant as the duty amount with interest had been deposited in full. This submission was uncontested, leading to the dismissal of the stay application as infructuous.