By TIOL News Service

NEW DELHI, JAN 29, 2013: THE CESTAT, Delhi passed the following order on 18.02.2011 -

"Revenue has filed an application for early hearing of their appeal on the ground that more than 45 months have been passed since filing of appeal before this Tribunal and the same has not been heard, a huge amount of Rs. 90 lakhs is involved, so the matter be heard on out of turn basis.

2. Heard and considered. 3. We do agree with the appellant that although 45 months have passed the appeal has not come up for hearing. It is prime duty of the appellant, before filing appeal before this Tribunal against any public sector undertaking to obtain the necessary clearance from COD as held by the Hon'ble Supreme Court in the case of ONGC. We have observed that more than 3 years have been passed, departmental officers had not even pursued to obtained clearance from COD till date, which shows lethargic attitude of the officers. Even this application is also filed for early hearing of appeal without applying for clearance from COD which means the department is not interested in pursuing this appeal also. After taking note of that, we allow this application for early hearing of appeal and are taking up the appeal for disposal today itself. 4. As we find that the appellant i.e. Revenue has failed to obtain necessary clearance from COD to contest the matter before this Tribunal, the appeal is dismissed for want of COD clearance, with liberty to the appellant to come up before this Tribunal after obtaining necessary clearance from COD. Appeal is disposed of in above manner.

5. Misc. application allowed and appeal dismissed."

Incidentally, after the CESTAT passed the above reproduced order, the Revenue filed an application for Restoration of Appeal by placing reliance on the Constitution Bench decision of the Supreme Court in Electronics Corporation of India Limited v. UOI: (2011-TIOL-18-SC-CX-CB) wherein it is inter alia held that the CoD mechanism had outlived its utility and accordingly the order in ONGC case - (2002-TIOL-196-SC-CX) was recalled.

This application of the Revenue was allowed by the CESTAT on 30.04.2012. Inasmuch as the Customs Appeal No. 538/2007 which had been dismissed, by virtue of a final order No. C-95/11 dated 18.02.2011 on the ground that the clearance of the Committee on Disputes had not been obtained, was restored by the CESTAT.

The high flying PSU is not at all happy with this order.

So, they are before the Delhi High Court.

The High Court observed -

"4....It is relevant to note that the said decision of the Supreme Court was rendered on 17.02.2011, that is, prior to the date on which the appellant's appeal had been dismissed (on 18.02.2011) on the ground of want of COD clearance. The Supreme Court in Electronics Corporation of India Limited (supra) observed and held as under:-

"x x x"

5. Thus, on and from 17.02.2011, there was no necessity for obtaining any clearance from the Committee on Disputes. The order dated 18.02.2011 was passed in ignorance of the Supreme Court decision of 17.02.2011. There are justifiable reasons as to why the Tribunal passed that order because it was just one day after the decision of the Supreme Court in the case of Electronics Corporation of India Limited (supra). However, the fact remains that on and from 17.02.2011, there was no requirement for obtaining a clearance from the Committee on Disputes. Therefore, as the law declared by the Supreme Court stood on 18.02.2011, the Tribunal was not correct in dismissing the revenue's appeal. The Tribunal has only rectified that mistake by allowing the revenue's said Customs ROA Application No. 41/2011 by reviving the appeal for hearing on merits.

6. We see no infirmity in the impugned order dated 30.04.2012 and, in any event, no substantial question of law arises for our consideration."

The appeal filed by Air India Ltd. was dismissed.

(See 2013-TIOL-70-HC-DEL-CUS)