TMI Blog2023 (9) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in the rectification of order was mixed question of law and fact that on which date service tax is leviable even the Cenvat credit issue also involve a detailed scrutiny. Therefore, the adjudication order does not suffer from apparent error whereas the issue under rectification was required a detailed analysis and therefore such issue could not have been decided by rectifying the order nor the issue which was rectified by the Adjudicating Authority was required to be agitated in an appeal and not by way of rectification. Moreover, the appellant have not attended the hearing and the order was passed ex-parte. The rectification was made on the date provided subsequently to the Adjudicating Authority therefore, at the time of passing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued determining the total service tax of Rs. 28,48,560/-. Due to internal disputes of the appellant s management, the hearing were not attended by the appellant and the order-in-original was passed ex-parte by the Adjudicating Authority. On receipt of order-in-original by the appellant, they noticed that there exists certain mistakes in the order-in-original and accordingly they preferred application for rectification of mistake under Section 74 of the Act. The Adjudicating Authority considering the application for ROM passed the rectified order-in-original. Thereafter the appellant preferred appeal against the rectified order-in-original before the learned Commissioner (Appeals) as regards the imposition of penalty on the confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Central Excise, Mumbai vs. Bharat Bijlee Limited - 2006 (198) ELT 489 (S.C.) (e) Raval Trading Company vs. CST -2016 (42) S.T.R. 210 (Guj.) (f) Pearl Travels vs. Commissioner of C.Ex. ST, Daman - 2020 (37) GSTL 242 (Tri. - Ahmd.)] 3. On the other hand Shri P. Ganesan, learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both the sides and perusal of record, we find that impugned issue is whether the Adjudicating Authority is right in passing rectified order in terms of Section 74 which reads as under :- SECTION 74, Rectification of mistake.- (1) With a view to rectifying any mistake apparent from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Chapter where any such amendment has the effect of reducing the [liability of an assessee or increasing the refund), the [Central Excise Officer] shall make any refund which may be due to such assessee. (7) Where any such amendment has the effect of enhancing the [liability of the assessee] or reducing the refund already made, the [Central Excise Officer] shall make an order specifying the sum payable by the assessee and the provisions of this Chapter shall apply accordingly. From the plain reading of above Section 74 it is clear that Adjudicating Authority can rectify own order only for the limited purpose i.e. if there is apparent error on the face of the order. 5. We find that in the present case, the Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Adjudicating Authority. On this ground also the rectification of order was not correct and legal in terms of Section 74. The remaining issues raised before the Commissioner (Appeals) by the appellant through their appeal is related to penalty. 6. As per our above observations the order of the learned Commissioner (Appeals) in the Revenue s appeal before him is correct and legal. As regards the appellant s appeal which is related to penalty on the demand, the same needs to be decided along with the demand of service tax. Since the adjudication order was passed without any hearing and as per the order there was error in computing the demand, we are of the view that matter needs to be remanded to the Adjudicating Authority for passi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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