The Supreme Court's decision in the case of Electronics Corporation of India Limited v. UOI established that from 17.02.2011 onwards, there was no necessity for obtaining any clearance from the Committee on Disputes.

BADAR DURREZ AHMED, J (ORAL)

1. The learned counsel appearing on behalf of Air India Limited makes an oral request that this writ petition be treated as an appeal under Section 130 of the Customs Act, 1962 inasmuch as the order impugned is an order dated 30.04.2012 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (CESTAT) in Customs ROA Application No. 41/2011 in Customs Appeal No. 538/2007. According to the learned counsel, the impugned order dated 30.04.2012 is an order passed in appeal by the Appellate Tribunal (CESTAT). The learned counsel for the respondent has no objection to the writ petition being converted into an appeal under Section 130 of the said Act. Consequently, we direct the Registry to re-number this writ petition as Cus. Act Appeal under Section 130 of the said Act.

2. The grievance of the appellant is that the impugned order restores 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. The order passed on 18.02.2011 is as under:-

“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 CUSAA 2/2013 Page 2 of 6 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 Tribuna1 after obtaining necessary clearance from COD. Appeal is disposed of in above manner.

5. Misc. application allowed and appeal dismissed.”

3. It is pertinent to note that the Tribunal, while dismissing the appeal for want of COD clearance, granted liberty to the revenue to come up before the Tribunal after obtaining necessary clearance from the Committee on Disputes and that the appeal was disposed of in that manner.

4. Sometime thereafter, the revenue filed the said Customs ROA Application No. 41/2011 seeking revival of the appeal in view of the Supreme Court’s decision in the case of Electronics Corporation of India Limited v. UOI: (2011) 332 ITR 58 (SC), which is a Constitution Bench decision. It is relevant to note that the said decision of the CUSAA 2/2013 Page 3 of 6 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:-

“9. The idea behind setting up of this Committee, initially, called a “High-Powered Committee” (HPC), later on called as “Committee of Secretaries” (CoS) and finally termed as “Committee on Disputes” (CoD) was to ensure that resources of the State are not frittered away in inter se litigations between entities of the State, which could be best resolved, by an empowered CoD. The