CCE Vs. VARADHMAN SPG. AND GENERAL MILLS

JUDGEMENT

(1.) THIS application for rectification of mistake is filed by the Reveagainst Final Order No. 1994/05 -SM(BR) dated 22.11.2005.

(2.) LEARNED D.R. submits that the mistake apparent on record is that the question of time bar was raised before the first appellate authority in support of which he relies upon the grounds of appeal taken in EA -2.

(3.) CONSIDERED the submissions made by both sides and perused the record. I find from the application for rectification of mistake that the department wants the Tribunal to re -consider the order dated 22.11.2005 on the ground that the department had, in fact, agitated the time bar aspect before the first appellate authority and there is a mistake in the Tribunal's order, as much that it has noted "though the reason best known to them, the revenue authorities did not prefer an appeal against the point of time -bar before the Commissioner, but they preferred an appeal on merits." On plain reading of the Order -in -Appeal dated 16.10.2003 it is very clear that the appellant (i.e. Revenue in this case) before the first appellate authority had not challenged the time bar aspect by refuting the order -in -original with detailed grounds against the time bar. Since the revenue did not take up the issue with detailed challenge, now it cannot be allowed to raise the same at second appeal stage. Further, during the course of arguments a question was put from the Bench, whether the time bar aspect was being agitated strongly before the Commissioner (Appeals), for which the answer was in negative. Since the issue of time bar was not agitated by the Revenue before first appellate authority, they are precluded, raising the issue before the Tribunal.