2013 (11) TMI 615

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....vo/Commr./CE/Kol.II/Adjn./2007-08 dated 4.1.2008 passed by the Commissiner of Central Excise, Kol.II. The applicant is a public sector undertaking. Accordingly, the applicant sought necessary permission from COD to pursue the appeal before this Tribunal. The application was rejected by COD on 19.02.2009. The applicant filed another application for re-consideration of the rejection order, however, the said request was also rejected on 2.4.2009. The applicant filed another application on 8.5.2009 for re-consideration of the decision dt 19.2.2009 and 2.4.2009, which is claimed to have been pending before the COD for decision. The applicant filed the Miscellaneous Application after the pronouncement of the decision of the Hon'ble Supreme Court ....

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....the Mumbai Bench of this Tribunal in the case of Commr. of Central Excise, Raigad Vs. ONGC Corporation Ltd. : 2011 (271) ELT 576 (Tri-Mum.). 3.1 The contention of the ld.Commissioner, Shri B. B. Agrawal, (A.R.), who has been authorized by the Board vide F.No.390/R/154/2011/JC dated 13.09.2012 to appear in the case, is that COD vide decision dated 19.02.2009 declined to accord the permission in the operative portion of the decision reads as under :    "The Committee was of the view that there was no infirmity in the decision of the Commissioner denying the benefit of Notification No.452/86-CE dated 20.11.86 as the assessee had failed to establish that entire modvat credit taken by him has been reversed. It therefore declined to a....

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....2011. 3.5 The contention of the ld. A.R. is that if in respect of certain matters COD had already taken a decision prior to 17.02.2011 (whether of permitting or of not permitting either side to pursue an appeal), then that decision is required to be implemented even if the appeal in question was pending before a particular Tribunal or Court as on 17.02.2011. The only impact of the Hon'ble Supreme Court's order in the ECIL case would be that COD permission would not be required in respect of (i) cases pending with COD as on 17.02.2011, and (ii) cases arising thereafter. 4.1 We have carefully considered the submissions and perused the records. The case was referred to Larger Bench to resolve the following issues :      ....

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....are not sustainable. 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. In fact, similar such orders have been recalled on some other matters also.      9. We are unable persuade ourselves to be in agreement with the said observation of the Mumbai Bench. Therefore, we direct the registry to place the following question of law before the Hon'ble President to refer the matter to a Larger Bench to resolve the same:-      "Whether in view of the ECIL's judgement....