GOVERDHAN BARDHAR,J. - (1.) This application has been filed by the applicant-appellant seeking recall of order dated April 11, 2018 passed by this court whereby the appeal filed by the Commissioner of Central Excise, Goods and Service Tax, Alwar was disposed of with the observation that the appeal against the judgment dated September 8, 2016 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short, "the Tribunal") would lie before the Supreme Court in view of the exception carved out under section 35G(1) of the Central Excise Act, 1944 (for short, "the Act"). This court while passing the aforesaid order relied upon the judgment of the Delhi High Court in Commissioner of Service Tax v. Ernst and Young P. Ltd. [2014] 27 GSTR 22 (Delhi) : [2014] 75 VST 51 (Delhi) wherein earlier judgment of Delhi High Court in Commissioner of Service Tax v. Bharti Airtel Limited [2013] 22 GSTR 54 (Delhi) : [2013] 64 VST 53 (Delhi); [2013] 30 STR 451 (Delhi) was also relied upon.
(2.) The learned counsel for the applicant-Revenue submitted that the issue involved in the appeal was whether the Tribunal had erred in holding that the demand is beyond the period of one year from the relevant date and is time-barred and further whether the Tribunal erred in dropping the penalty under section 11AC of the Act on the assessee. The learned counsel submitted that the question before the Delhi High Court in Commissioner of Service Tax v. Ernest and Young P. Ltd. [2014] 27 GSTR 22 (Delhi) : [2014] 75 VST 51 (Delhi) was of determination of any question in relation to rate of duty and therefore, the appeal would have been maintainable before the Supreme Court in that case. Even if the appellant-applicant had filed an appeal before the Supreme Court, it would not have been maintainable, argued the learned counsel for the applicant.
(3.) The learned counsel for the respondent-assessee submitted that there were total five issues identified by the Tribunal in para 3 of the judgment. While the issue with regard to demand being time-barred and penalty being not imposable was decided against the Revenue but other three issues were decided in favour of the assessee and those issues essentially have relation to the rate of duty of excise and the value of the goods. If the Department was aggrieved of any part of the order, it has to essentially file appeal against the whole judgment before the Supreme Court.;