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2017 (12) TMI 285 - AT - Service TaxMaintainability of ROM application - there is no apparent mistake in the Tribunal s order - Held that - It may mention that if some incidental facts were not noticed and discussed ROM is not maintainable. Only cumulative effect has been given in the order - In the garb of rectification, fresh order cannot be passed. There is no apparent mistake in the Tribunal s order - the Tribunal has adopted the reasons passed by the Commissioner (Appeals) regarding extended period of limitation - there is no merit in the ROM application - ROM application dismissed.
Issues:
1. Adjudication of the plea of time bar in the Final Order. 2. Appeal against the order passed by CESTAT. 3. Maintainability of the ROM application. 4. Discussion on limitation issue by the Commissioner (Appeals). Adjudication of the plea of time bar in the Final Order: The appellant submitted that the Tribunal did not adjudicate the plea of time bar in its Final Order, which was dated 11.4.2014. However, the appeal was dismissed on merit, upholding the Commissioner (Appeals) order. The appellant then filed an appeal against the CESTAT order before the High Court of Rajasthan. The High Court allowed the appellant to withdraw the appeal to approach again after the ROM decision. The High Court specified that the period taken for preferring the appeal from 2014 would be considered under Section 14, and the ROM application would be accepted if preferred by a certain date. The present ROM was filed by the appellant following the High Court's order. Appeal against the order passed by CESTAT: The appellant filed the appeal against the CESTAT order before the High Court of Rajasthan, seeking to have a chance to prefer an application of ROM. The High Court permitted the appellant to withdraw the appeal to approach again after the ROM decision. The High Court clarified that the appellant could challenge both the ROM order and the order under appeal. The High Court emphasized that the order would not prejudice the rights of either party. In compliance with the High Court's order, the present ROM was filed by the appellant-assessee. Maintainability of the ROM application: During the hearing, the appellant's counsel did not appear, and only the Id. DR justified the Tribunal's order. Referring to a case, the DR argued that the present ROM was not maintainable as seeking a revisit of facts and findings of the Tribunal's order amounted to a review, which the Tribunal did not have the power to do. The DR contended that the Tribunal had already decided the appeal on merit by upholding the Commissioner (Appeals) order, which included a discussion on the limitation issue in para 16.7 of the Commissioner's order. The DR further cited legal precedents to support the position that the ROM application was not maintainable. Discussion on limitation issue by the Commissioner (Appeals): The Tribunal, after considering the facts and circumstances of the case, found that the appeal was decided on merit by upholding the Commissioner (Appeals) order. The Commissioner had discussed the limitation issue in detail in para 16.7 of the order, where it was noted that the Show Cause Notice was issued late, impacting the demand of Cenvat credit under the Central Excise Act, 1944. The Tribunal held that there was no apparent mistake in its order as it upheld the Commissioner's reasoning on the extended period of limitation. Consequently, the Tribunal dismissed the ROM application, citing the settled legal position and the lack of merit in the application.
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