- (1.) HEARD learned counsel for the parties. The petitioner preferred an appeal being Service Tax Appeal No. 134 of 2008 before the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata. The said appeal was dismissed vide order dated 19.12.2008 on the ground that the appellant being a public sector unit was required to obtain a COD clearance to pursue the appeal which has not been obtained. A liberty was given to the appellant -petitioner to obtain the clearance from COD for preferring the appeal and then move application for restoration. The petitioner applied before COD for grant of permission to prefer the appeal but that was declined by the COD vide order dated 30.06.2009. The petitioner also filed one application No. MA(ROA) 307/09 for restoration of its appeal S.T. Appeal No. 134 of 2008 which application was dismissed vide order dated 30.5.2010. Then, petitioner submitted a review petition before the COD. Admittedly, no order has been passed by the COD on the review petition filed by the petitioner for granting permission to the petitioner to prefer the appeal. However, again one miscellaneous application No. MA(ROA) 444 of 2011 has been filed for restoration of the appeal being S.T. Appeal No. 134 of 2008 before the Tribunal which was dismissed vide order dated 02.07.2012 in absence of the petitioner and after observing that "the applicant filed the restoration application and that application was earlier dismissed. Today the applicant is not present nor any time was sought." In view of the above, the Tribunal observed that the applicant is not serious to pursue their application. Again one more application has been filed for restoration of appeal being S.T. Appeal No. 134 of 2008 and that application is pending before the Tribunal.
(2.) NOW , the petitioner has filed this writ petition challenging the order dated 02.7.2012 passed by the Tribunal dismissing the petitioner's appeal being S.T. No. 134 of 2008 on the ground that subsequently, the Hon'ble Supreme Court in the case of Electronics Corporation of India Ltd. Vrs. Union of India reported in 2011 : (265) E.L.T. 11 (SC) observed that clearance of COD cannot be a just reason for preferring appeal by public sector units. Therefore, according to learned counsel for the petitioner, the appellant's appeal was maintainable and COD, if would have been functional, would have granted the clearance for preferring appeal. Since, in view of the judgment of Hon'ble Supreme Court, the COD is now non -functional, the appeal of the petitioner deserves to be restored. We considered the submission of learned senior counsel Shri Binod Poddar. The application for restoration of S.T. Appeal No. 134 of 2008 is pending before the Tribunal and we do not find any reason for the petitioner to approach this Court for seeking any relief. If the law is well settled by the Hon'ble Supreme Court, then it was for the applicant to pursue for restoration of its appeal before the Tribunal and the Tribunal has yet not passed the order for dismissal of the restoration application and, therefore, this writ petition is absolutely pre -mature and liable to be rejected only on the ground of pre -maturity.
(3.) LEARNED counsel for the petitioner submitted that learned Tribunal may be directed to consider and decide the restoration petition expeditiously.;