TaxTMI 
TaxTMI 
2025 (6) TMI 520
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (Act) read with proviso to Section 73(1) ibid along with appropriate interest and equivalent penalty imposed under Section 78 of the Act as well as a penalty of Rs.10,000/- imposed under Section 77 of the Finance Act. 2. Briefly stated, the facts are that the appellant is engaged in providing ERP Development services to their associated enterprise M/s Executive Ship Management Pte Singapore (ESM Pte). The appellant is registered with Service Tax department under Service Tax Registration No.AAMCS8626DSD001. Based on Intelligence that the appellant has not paid service tax on the ERP Development services provided by them to their associated enterprise ESM Pte by claiming the same as export of services, Officers of Directorate General of GST Intelligence (DGGI), Chennai commenced their investigation and conducted search proceedings. It was observed that M/s. ESM Pte has entered into contracts with various ships / shipping lines and are engaged in providing ship crew recruitment and management services to these ships/ shipping lines. ESM Pte has entered into Custom Enterprise Resource Planning (ERP) Development Agreement with the appellant and retained the appellant to develop the E....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment further held the view that the above facts regarding the non payment of Service Tax on the taxable services provide by the appellant came to the notice of the department only when conducting the investigation and the appellant appears to have suppressed relevant and vital facts from the department with malafide intention to evade service tax. In view of the above, the department issued Show Cause Notice No. 32/2020 dated 29.06.2020 invoking extended period of limitation. The appellant replied contesting the demands and after due process of law, the adjudicating authority passed the aforementioned OIO No.30/2021-JC dated 25-08-2021 confirming the demand of Service Tax along with appropriate interest and equivalent penalty imposed under Section 78 of the Act as well as a penalty of Rs.10,000/- imposed under Section 77 of the Finance Act. Aggrieve by the said OIO, the appellant preferred an appeal before the Appellate Authority who has however, passed the impugned OIA aforementioned. Hence this appeal. 5. Shri Gopal Mundhra, Advocate, appeared and argued for the appellant. The Ld. Counsel submitted that ESM Holdings is the ultimate parent entity for the Appellant and other....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l management and crew management services, the Appellant merely renders one part of only one aspect of such services i.e,ERP Development. 8. In his written submissions, the Ld. Counsel depicted the flow of services and the services performed by each entity as under : 9. The Ld. Counsel submits that from the above it is evident that ESM Pte is in the business of rendition of technical management and crew management services, it had appointed the Appellant to independently provide ERP Development services in terms of the ERP Agreement which are rendered entirely by the Appellant to ESM Pte. The services of the appellant are in the nature of ERP development, installation and maintenance services and not that of rendering or facilitating the services of technical management and crew management rendered by ESM Pte to its clients. It is submitted that considering the nature of services rendered by the appellant reliance is placed on the decision in SNQS International Socks Private Ltd (Trading Division) v Commissioner of GST & Central Excise, Coimbatore Commissionerate, 2023 (11) TMI 898- CESTAT Chennai, affirmed in Commissioner of GST and Central Excise v. M/s. SNQS Internationa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stinct persons in accordance with Item (b) explanation 3 of Clause (44) of Section 65B of the Act, 1994." 13. It is submitted that it has been well established inter alia by the below judgements that software development service (such as that in the nature rendered by the Appellant) do not qualify as intermediary services, namely, Firstrand Services Pvt. Ltd. Versus Commissioner of CGST & CX, Mumbai East - 2019 (2) TMI 579 - CESTAT MUMBAI, Infodesk India Pvt. Limited Versus The Union Of India & Ors. - 2025 (1) TMI 583 - Gujarat High Court 14. The Ld. Counsel also pointed out that the services rendered by the Appellant in terms of the ERP Agreement for the Dispute Period under Service Tax regime are identical in nature to those which are now rendered post 1 July, 2017 under the GST regime The GST laws allow refund of accumulated input tax credit pertaining to export of goods/services. In this regard the Appellant had regularly filed refund claims with respect to the services rendered to ESM Pte in terms of the ERP Development Agreement. The GST authorities after examining whether the services rendered by the Appellant are intermediary services rendered in India or if they qua....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ernational Holdings BV v UOI, 2012 (6) SCC 613. It is also submitted that the use of the word 'merely' further dilutes condition (f) of Rule 6A and on a conjoint reading of the word 'merely' while interpreting clause (f) of Rule 6A, i.e. "the provider of service and recipient of service are not merely establishments of a distinct person", it is made apparent that the provider of service and the recipient of service are not merely establishment of distinct persons, or no more than what is specified in the statute. Therefore, the term "merely" in the context of the export of service condition implies that the service provider and service recipient must not only be different establishment of the same person, but there must be a cogent relationship between service provider and service recipient and there must be undisputed fact of performance of service. Nevertheless, in the facts of the present case, the Appellant and ESM pte are distinct legal entities therefore the said condition stands fulfilled. 17. The Ld. Counsel also placed reliance on CBIC Circular No. 161/17/2021-GST dated 20.09.2021 in relation to export of services under the GST regime. The circular has in no unclear ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....able. The present matter covers the dispute period from October 2014 to June 2017 whereas the SCN was issued only on 29.06.2020. The appellant had filed Service Tax returns for this period on 21.07.2015, 20.10.2015, 22.04.2016, 24.10.2016, 25.04.2017 and 11.08.2017 respectively as is evidenced by the ST-3 returns forming part of the Appeal records. In the present case since the service tax returns were all filed well before January 2018 the entire demand is wholly barred by limitation. 20. It was also submitted that the appellant had made sufficient disclosure in books of account and return to the extent of export claimed. Reliance was placed on the decisions in Good Year India Ltd vs. CCE 024 (10) TMI 287 - CESTAT CHANDIGARH, Orbit Research Associates Private Limited vs. Commissioner Of Service Tax (Appeals I), New Delhi - 2023 (8) TMI 246 - CESTAT New Delhi, Progressive Endeavours Pvt. Ltd. vs. CCE 2024 (10) TMI 1261 - CESTAT KOLKATA and Kamal Auto Finance Ltd. v. Commissioner of Service Tax, Jaipur [2012 (26) S.T.R. 46 (Tri. - Del.) . 21. Ld. Counsel further submitted that even otherwise the scope of intermediary is a matter of interpretation and is a contentious issue an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her. The former acts as an agent of the latter. An agency is the relationship of principal and agent in terms of a contract - express or implied. The Ld. AR submits that it is the matter of record that clauses after clauses in the duties of Appellant as per Contract refers to "On behalf of". Ld. A.R. contended that the Appellant is under obligation to act on behalf of, to act on approval of, to act upon request of, to liase on behalf of Main service provider. 26. The Ld. AR submits that the issue of non-fulfilment of condition laid down in Rule 6A(1)(d) has been discussed by the Adjudicating Authority. Place of provision of Intermediary Service is the location of Service Provider and in instant case, service provider is located in India and therefore, place of provision is within India. In view of above, as per Rule 6A of Service Tax Rules,1994, since place of service for such activities being in the nature of intermediary services is not outside India, such services cannot be treated as export of service. The Ld. AR submits that the issue of condition laid down in Rule 6A(1)(f) has been discussed by the Adjudicating Authority and in the instant case provider and recipient are not....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the appellant is an intermediary as defined in Rule 2(f) of the Place of Provision of Services Rules, 2012 ( POPS Rules) and also whether the services rendered by the Appellant to M/s. ESM Pte can be treated as Export of Services as per Rule 6A of the Service Tax Rules, 1994 (STR Rules)? 31. When a plea that the demand is wholly barred by limitation is raised, we find it apposite to deal with the said issue first. The question of limitation goes to the root of the matter and involves a question of jurisdiction to raise the demand itself in the first instance. This in turn is premised on the provisions of law that prescribe the situations as well as the attendant ingredients thereto that attract its application. The findings of fact on the question of jurisdiction would be a jurisdictional fact. Such a jurisdictional question therefore needs to be examined and is to be determined having regard to both the facts and law involved therein. To appreciate whether the demand is wholly barred by limitation, it would therefore be appropriate to reproduce section 73(1) of the Finance Act,1994 as it stood at the relevant time. This section deals with recovery of service tax not levied ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ax has not been levied or paid or has been short-levied or short-paid- (a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund." (emphasis supplied) 35. The provisions of Section 73, save for a variation in the normal period, when it was one year as opposed to thirty months in the provision as reproduced above, came up for consideration before the Honourable Delhi High Court in Bharat Hotels Ltd v. Commissioner of C.Ex (Adjudication), 2018 (12) GSTL 36....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ms Act, 1962 (hereinafter referred to as "the Customs Act") and 11A of the [Central] Excise Act, 1944 (hereinafter referred to as "the Excise Act"). In order to determine if the same interpretation extends to Section 73 of the Act the following decisions of the Supreme Court have to be looked at. In the case of Uniworth Textiles Ltd. v. Commissioner of Central Excise, Raipur [(2013) 9 SCC 753 = 2013 (288) E.L.T. 161 (S.C.)] the Supreme Court discussed its previous judgments to determine the applicability of the proviso to Section 28 of the Customs Act for extension of limitation period for issuing notice for payment of duties that have not been levied, short-levied or erroneously refunded. The relevant paragraphs of the judgment are excerpted below : "9. The show cause notice was issued on 2-8-2001, more than six months after the appellant had imported furnace oil on behalf of Uniworth Ltd. in January, 2001. This time period of more than six months is significant due to the proviso to Section 28 of the Act. The Section, at the relevant time, read as follows : 28. Notice for payment of duties, interest, etc. - (1) When any duty has not been levied or has been short-levi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsertion of conditions of 'fraud' and 'contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of Service Tax' in Section 73 of the Finance Act, 1994. In Uniworth (supra), the Supreme Court discussed the interpretation of the proviso of a similar provision in Section 11A of the Excise Act and held that it is pari materia to the proviso to Section 28 of the Customs Act. The relevant paragraphs are excerpted below : "13. This Court, in Pushpam Pharmaceuticals Co. v. Collector of Central Excise, Bombay [1995 Supp (3) SCC 462], while interpreting the proviso of an analogous provision in Section 11A of The Central Excise Act, 1944, which is pari materia to the proviso to Section 28 discussed above, made the following observations : xxxxxx xxxxxx xxxxxx 18. We are in complete agreement with the principle enunciated in the above decisions, in light of the proviso to Section 11A of the Central Excise Act, 1944. However, before extending it to the Act, we would like to point out the niceties that separate the analogous provisions of the two, an issue which received the indulgence of this Court in Associated Cement Co. Ltd. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it was sought to be contended that Section 28 of the Customs Act is in pari materia with Section 11A of the Excise Act, we find there is one material difference in the language of the two provisions and that is the words "with intent to evade payment of duty" occurring in proviso to Section 11A of the Excise Act which are missing in Section 28(1) of the Customs Act and the proviso in particular.... 56. The proviso to Section 28 can inter alia be invoked when any duty has not been levied or has been short-levied by reason of collusion or any wilful misstatement or suppression of facts by the importer or the exporter, his agent or employee. Even if both the expressions "misstatement" and "suppression of facts" are to be qualified by the word "wilful", as was done in the Cosmic Dye Chemical case while construing the proviso to Section 11A, the making of such a wilful misstatement or suppression of facts would attract the provisions of Section 28 of the Customs Act. In each of these appeals it will have to be seen as a fact whether there has been a non-levy or short-levy and whether that has been by reason of collusion or any wilful misstatement or suppression of facts by the import....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eference to the same subject." [United Society v. Eagle Bank, (1829) 7 Connecticut 457, p. 470, as cited in CRAIES, Statute Law, p. 134 (7th Edition)]. The provisos to Sections 11A of the Excise Act, 28 of the Customs Act and Section 73 of the Finance Act, refer to the same class of persons, i.e., persons from whom tax has been not been levied, or has been short-levied or erroneously refunded. The subject matter of these provisos is issuance of a Show Cause Notice in order to collect such tax. Further, there seems to be no difference in language of the proviso to Section 11A of the Excise Act and Section 73(1) of the Finance Act. Since, the pith and substance of both these provisions is the same, the various judgments of the Supreme Court discussing the interpretation of proviso to Section 11A of the Excise Act can be extended to interpret Section 73(1) of the Finance Act. Further, since proviso to Section 28 of the Customs Act is pari materia to proviso to Section 11A of the Excise Act (as held in Uniworth), the interpretation of proviso to Section 28 may also be extended to interpret the proviso to Section 73 of the Finance Act. Uniworth (supra) is also authority on the meaning o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... intention to evade duty must be proved for invoking the proviso to Section 11A(1) for extended period of limitation. It has been further held that intent to evade duty is built into the expression "fraud and collusion" but misstatement and suppression is qualified by the preceding word "wilful". Therefore, it is not correct to say that there can be suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for invoking the proviso to Section 11A. 25. In case of Pushpam Pharmaceuticals Co. v. C.C.E. [1995 (78) E.L.T. 401 (S.C.)], this Court has held that the extended period of five years under the proviso to Section 11A(1) is not applicable just for any omission on the part of the assessee, unless it is a deliberate attempt to escape from payment of duty. Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact." 26. Again, the Supreme Court in Continental Foundation Joint Venture Holding v. Commissioner of Central Excise, Chandigarh-I [(2007) 10 SCC 337 = 2007 (216) E.L.T. 177 (S.C.)], held that : "10. The expression "suppre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....also states that, during the enquiry itself, it paid Service Tax on the sale of the above-mentioned items for the periods 2004-05 and 2005-06 with interest and had also started paying Service Tax on these items regularly from April, 2006. The same has been also acknowledged by the DGCEI in the SCN. 29. As regards management, maintenance and repair services the appellant claimed that it was unaware of the development under Section 65(105)(zzg) of the Finance Act and that when the same came to the knowledge of the appellant, the appellant promptly got itself registered for the said service and started discharging its Service Tax liability with respect to the said service from financial year 2006-07, and also paid Service Tax for the financial year 2005-06. The same has again been also acknowledged by the DGCEI in the SCN. The absence of any material disclosing intent to evade payment of Service Tax by the appellant is evident by the fact that it promptly made all the payments pertaining to Service Tax liability with respect to Mandap Keeper Service and Management, Maintenance and Repair Service as soon as the appellant became aware of the same (during the enquiry) and continued to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has acted in error or ignorance, it could not be an excuse as held in the case of D. Cowasji [1978 (2) ELT J154 (SC)] that "We are not quite sure that if the maxim that everyone is presumed to know the law is applied, there will be any case of payment under a mistake of law unless that presumption is rebutted in the first instance, for, the moment it is assumed that everyone is presumed to know the law, it is clear that no one can make a mistake as to the law. It is sometimes said that every man is presumed to know the law, but this only a slovenly way of stating the truth that ignorance of the law is not in general an excuse (See Frederick Pollock, " Jurisprudence and Legal Essays", p.89" Therefore in the absence of any positive volition on the part of the appellant to get clarification on the nature of services rendered by them, their pleadings of error, interpretation etc are just an afterthought. Also the pleading of appellant as to their 'bonafide belief' also fails as they are aware of chargeablity of otherwise to service tax. They had taken service tax registration and declared the income under export of service. It should be noted that even though the appellant ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ery ER-1 return filed by an assessee is required to be scrutinized by the RO for correctness of rate of duty applied to the goods cleared, arithmetical accuracy of duties/amounts dues and payable; Cenvat credit availment, valuation etc., this scrutiny must be completed within 3 months and the returns of the units whose annual duty payment is Rs. 1 crore to Rs. 5 crores and more than Rs. 5 crores, are also to be cross checked by the Assistant Commissioner and Additional Commissioner, respectively. (1) Circular No. 249/83/96-CX., dated 11-10-1996 (para 3); (2) Circular No. 311/27/97-CX., dated 15-4-1997 (regarding maintenance of register of scrutiny and reporting progress of scrutiny of ER-1 returns in monthly Technical Report being sent to the Board.) (3) Circular No. 818/15/2005-CX., dated 15-5-2005 issued by C.B.E.& C. under Rule 12(3) of Central Excise Rules, 2002 prescribing two stage scrutiny of ER-1 and ER-3 returns - preliminary scrutiny and detailed scrutiny as per detailed check list prescribed for this purpose. 7.2 From the above Circulars of the C.B.E. & C. regarding scrutiny of ER-1 returns, it is clear that the returns filed by an assessee are required to be su....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the view that allowing the assessee to self-assess the tax is a mere facility extended to the assessee. That in no way detracts or dilutes the statutory responsibility of the jurisdictional central excise officers to ensure correctness of the assessment, exemptions claimed and duty payments made. In the instant case, on a perusal of the ST-3 returns available as part of the Appeal records, we find that in the ST-3 returns filed regularly, the Appellants have, under PART B, titled "VALUE OF TAXABLE SERVICE AND SERVICE TAX PAYABLE", against B1.8 titled the "amounts charged against export of service provided or to be provided", duly indicated the amounts in respect of each month in the appropriate place provided for such declaration. The appellant has also indicated in the respective rows thereafter, pursuant to the said particulars indicated in the ST 3 returns, the total amount claimed as deduction, the consequent net taxable value as well as the service tax payable in the appropriate rows and columns as was necessary. Therefore, we are of the considered view that the aforesaid responsibility of the jurisdictional departmental officers to scrutinize the returns filed, reflecting th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....period of limitation, there has to be a suppression or mis-statement with an intent to evade payment of duty. When the respondents have reflected the amount of credit availed by them in their monthly returns, it cannot be said that there was any positive act of suppression on misstatement on their part. As such, we are of the view that Commissioner (Appeals) has rightly held a part of the demands as barred by limitation. 42. There is a catena of decisions in similar vein wherein, various High Courts as well as this Tribunal, have consistently held that when the assessee is registered and filing returns regularly, the range officer had a duty to scrutinize returns and detect any irregularity and to raise pertinent queries in this regard and that in the light of any negligence or failure to do so, the allegation of suppression by the assessee cannot be countenanced. To cite a few, apart from those cited above, the decisions in Jagadamba Power & Alloys Ltd v CCE, Jaipur, 2025(391) ELT 478 (Chhattisgarh) affirmed in CCE v Jagadamba Power & Alloys Ltd, 2025 (391) ELT 465 (SC), Swastik Engineering v CCE, Bangalore, 2010 (255) ELT 261 (Tri-Bang) upheld in CCE Bangalore II v Swastik Engi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n in response to the Department's queries during investigation, it was stated that " The taxable services exported outside India are not leviable to service tax and therefore exempt. Service Tax is a destination based tax therefore if the services are consumed abroad, they are covered under export and are not leviable to service tax. Since M/s. SNSSPL is exporter of software outside India, service tax is exempted." For reasons best known to the authorities, these returns have not been scrutinised as and when filed, or if scrutinized, have not excited them enough to embark on any inquiry within the normal period so as to raise a tenable demand, if any, on the appellant. When it is the responsibility of the jurisdictional departmental officers to scrutinize the returns filed reflecting the information of amounts towards export service provided and service tax payable indicated by the appellant, any failure on their part to take up the information for scrutiny can neither be condoned to the detriment of the appellant, nor would it then justify invoking of the extended period of limitation by the Department. It is also pertinent to note that the Honourable Apex Court in Uniworth T....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the order observes that a doubt on the part of the appellant regarding its taxability to Service Tax is not relevant; in case the appellant has a doubt about taxability of the service "the appellant should have approached the department for clarification" but failed to do so and therefore the appellant had deliberately avoided payment of Service Tax, suppressed the fact of non-payment of Service Tax and therefore imposition of penalty under Section 78 is valid. The order of the appellate authority is equally misconceived as there is no provision for an assessee to seek advisory opinion from departmental officers nor is any statutory provision brought to our notice which authorises departmental officers to provide advice on interpretation of provisions of the Act; assessment of transactional facts qua the provisions of the Finance Act, 1994 and provide guidance on taxability or otherwise. The perception of the learned appellate Commissioner that every departmental officer is a sui generis advance ruling authority is a misconception that has no legislative basis." (emphasis supplied) The said view has recently been reiterated in the decision of the Principal Bench of this Tribu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ant had declared the amounts received as towards export of service in the ST 3 returns and the said fact was in the knowledge of the department, therefore, the SCN issued on 29-06-2020 is beyond the normal period of limitation and the entire demand is barred by limitation. The normal period of thirty months when calculated in the reverse from the date of issuance of the SCN which is on 29-06-2020, which could at best have been covered, is only if there was a demand for the period from January 2018 onwards alone. In the present case the service tax returns were all filed well before January 2018 and the period under dispute is also only upto June 2017. Thus, for the reasons we have elucidated supra, the confirmation of the demand of service tax in the instant case, which was for the period from 01.10.2014 to 30.06.2017, was entirely barred by limitation and is therefore wholly unsustainable and is liable to be set aside. 49. Given our findings above that the extended period of limitation was not invokable and that the demand was wholly barred by limitation, we are disinclined to now go into the merits of the dispute for more reasons than one. Firstly, a finding on merits is rendere....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by limitation but had nonetheless proceeded to decide the issue on merits. Holding that this would amount to an illegality, the Supreme Court observed : "12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside." 24. Consequently, since the Tribunal was justified, as we have held, in coming to the conclusion that the demand was time barred, there was no occasion for the Tribunal to enter upon the merits of the dispute. We, accordingly, answer the question of law as framed by the assessee in the affirmative and in favour of the assessee. 25. The appeal by the assessee shall stand disposed of in the afores....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside." Applying the ratio of the Supreme Court in State Bank of India v. B.S. Agricultural Industries reported in (2009) 5 SCC 121, the Allahabad High Court in Commissioner of Customs, Central Excise & Service Tax v. M/s. Monsanto Manufacturer Pvt. Ltd., reported in 2014-TIOL-550-HC-ALL-ST, answered the question of law in favour of the assessee. 13. Judgment of the Supreme in State Bank of India's case (cited supra), followed in Commissioner of Customs's case (cited supra), squarely applies to the facts on hand, wherein, CESTAT, Madras, while dismissing the appeal as time-barred, has entered into the merits of the case and dismissed the same, on merits. In the words of the Hon'ble Supreme Court, that would be an illegality. 14. Though Mr. A.P. Srinivas, learned counsel appearing for the Revenue submitted that the correctness of the order impugned before us, can be decided in an appeal before the CESTAT and prayed to sustain the order, dated 15-2-2016 in W.P. No. 5501 of 2016, in the lig....