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Appeals by State Government undertakings - High Court allows restoration of appeal of 2004 dismissed in 2011 for want of COD clearance in light of ECIL case

By TIOL News Service

CHENNAI, JULY 02, 2015: THE assessee is a Public Sector undertaking and filed an appeal before the Tribunal in 2004. At the material time, as per the Supreme Court guidelines in ONGC case (2002-TIOL-196-SC-CX-LB), clearance from the Committee on Disputes (CoD) was required to file the appeal. Since the assessee did not have such clearance, the appeal was dismissed on 12.01.2011 with liberty to approach the Tribunal for restoration in the event of obtaining clearance.

On 17.02.2011, in case of ECIL, the Supreme Court held that such procedure had outlived its utility and therefore, it had to be recalled. (2011-TIOL-18-SC-CX-CB). The assessee filed a restoration application before the Tribunal on 30.05.2011 in the light of Supreme Court decision and the same was dismissed by the Tribunal holding that at the time of passing the earlier order, the decision of ONGC was in operation. The assessee is now before the High Court challenging the order of the Tribunal.

After hearing both sides, the High Court held:

It is seen that the decision in the case of Electronics Corporation of India Vs. UOI, 2011-TIOL-18-SC-CX-CB it was held in paragraph 8 that by another order dated 20.7.2007 (Oil & Natural Gas Corpn. Maharashtra Ltd. case) the Court extended the concept of dispute resolution by High-Powered Committee to amicably resolve the disputes involving State Government and their instrumentalities. The appeal in this case was filed on 25.09.2004 and therefore, prima facie the appellant is justified in saying that there was no requirement for clearance by the High Powered Committee. The Tribunal was at error in dismissing the appeal at the first instance. Even otherwise, subsequent to the decision of the Supreme Court in the case of Electronics Corporation of India Vs. UOI, reported in - 2011-TIOL-18-SC-CX-CB, the restoration application has been filed on 30.5.2011. The law as it stands on and after 17.2.2011 is that there is no requirement of getting clearance from the COD. The Tribunal had failed to note the decision of the Supreme Court and therefore, the order of the Tribunal is erroneous.

(See 2015-TIOL-1529-HC-MAD-CUS)


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