'weak' mention about time bar - No ROM
IN Revenue appeal, the Bench had held that the respondent is not eligible for benefit of Notification no. 12/2003-ST and is liable to discharge Service tax liability on the gross amount charged on the transaction for the period on or after 16.6.2005 along with interest thereon in terms of the provisions of the Finance Act, 1994. In the said order, it was further mentioned that the respondent would also be eligible to take CENVAT credit of the excise duty/CVD, if any, paid on the materials used for the retreading service in accordance with law; that since the issue involved interpretation of law and there were conflicting views on the subject matter, imposition of penalty was not warranted and the same was set aside and appeal was disposed of in the above terms. We reported this as 2013-TIOL-1261-CESTAT-MUM.
Now, the respondent is before the CESTAT with a ROM application and submits that the Bench did not consider the aspect of limitation while passing the order and it is prayed that the submission of time bar be considered and a fresh order be passed.
The Bench observed -
“4. We have perused the cross-objection dated 24.3.2012 filed by the respondent in this particular case. On perusal of the cross objection, it is seen that there is no whisper of any time bar of demand raised by the appellant in the said cross-objection. Only a side heading is given indicating that there was no intention to evade any Government taxes. Other than this, there is no mention of the demand being time barred and if so, what is the demand involved for the period beyond the normal period of limitation.
5. The learned Counsel submits that he had “weakly” mentioned about the time bar aspect during his oral submissions. Inasmuch as the plea of time bar was not taken before this Tribunal at the time of hearing of the appeal, either in the cross-objection filed by the appellant or at the time of hearing, we do not find any infirmity in the order passed by the Tribunal. Consideration of an issue which was not raised before us would amount to “review” of our own order, which is not permissible. Accordingly, the ROM application is dismissed as devoid of merits.”
Incidentally, that ‘he' was someone else!