ORDER :

Heard learned counsel for the petitioner Mr. Amit Kumar Das and Mr. Ashish Shekhar, assisting counsel to Mr. Amit Kumar for the respondent Central Excise and Custom Department.

2. Petitioner’s appeal no. E/3796/03 preferred against the order dated 11.09.2003 passed by the Commissioner, Customs and Central Excise (Appeals), Nagpur in appeal no. 286 of 1999 was dismissed by the learned Customs Excise & Service Tax Appellate Tribunal (CESTAT), West Zonal Bench at Mumbai by the order dated 17.02.2011(Annexure- 5), impugned herein holding as under :

“When this matter was called out, none appeared on behalf of the appellants. There is a request for adjournment from the accountant of the appellants.

2. On a perusal of the record, we find that the appellant is government of India undertaking, which is indicated on the letter head. If that is so, they are supposed to file clearance certificate from the Committee on Disputes. In the absence of any such certificate, we are unable to take up the appeal for disposal. The appeal is dismissed for non-production of certificate from the Committee on Disputes. At the same time, liberty is granted to make an application for restoration as and when they get certificate from the Committee on Disputes.”

3. Petitioner is a government company as defined under Section 615 of the Companies Act, 1956. A claim of its supplier M/s International Conveyers Limited for refund of excess amount of excise duty for the period 22.04.1987 to 31.03.1994 was rejected by the Commissioner, Central Excise & Customs, Aurangabad Division vide order dated 08.01.1996 for the reason that the duty has been passed on to the buyer. Its appeal was also rejected on 21.03.1996 on the ground that claim for refund can at best be made by the buyer as provided under Section 11-B of the Central Excise Salt Act, 1944. Petitioner on coming to learn of the two orders, having realized that it was the petitioner who had suffered the loss due to realization of excess excise duty, which was illegally collected by the respondent authorities, made a claim for refund before the Excise Department. The refund application was rejected vide order dated 06.01.1999. The appeal bearing no. 286 of 1999 was also dismissed vide order dated 11.09.2003 by the Commissioner (Appeals) Central Excise and Customs, Nagpur on the ground that appeal of the supplier M/s International Conveyers Limited was still pending before the CESTAT. The impugned order has been passed thereafter on the appeal preferred by the petitioner against the order of Commissioner (Appeals).

4. Learned counsel for the petitioner submits that the appeal has been rejected by the learned CESTAT on the sole ground that petitioner had not been able to produce the clearance certificate from the Committee on Disputes (COD). However, the learned Tribunal granted liberty for making an application for restoration as and when the petitioner gets certificate from the COD. Learned counsel for the petitioner submits that the requirement of obtaining clearance from the COD was done away with by the Constitution Bench decision of the Apex Court in the case of Electronics Corporation of India Limited Vrs. Union of India and others reported in (2011) 3 SCC 404. He further submits that the same issue cropped up in the case of Northern Coalfields Limited Vrs. Heavy Engineering Corporation Limited and another reported in (2016) 8 SCC 685, which was decided by the Apex Court reiterating that absence of such permission was not a fatal defect. What was restrained under the previous dispensation in the light of judgment of the three judges Bench by the Apex Court in the case of Oil and Natural Gas Commission and another Vs. Collector of Central Excise reported in 1995 Supp (4) SCC 541 was that progress in such suit, application or appeal till such time permission from COD was obtained shall remain restrained. The absence of permission from COD was not a mandatory legal requirement for institution of the suit.