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2019 (8) TMI 1652 - CESTAT MUMBAIRectification of Mistake - error apparent on the face of record - applicant has couched the contents of the order of the Hon’ble High Court of Bombay in an attempt to mislead the Tribunal - HELD THAT:- The detriment to the applicant herein, and appellant in proceedings before the Tribunal, was a consequence of non-discharge of tax liability. That it was made good in the course of investigations is not acceptable as restitution for having failed, in the first instance, to deposit tax collected from recipients of service. Any dispute over liability to discharge any indirect tax is acknowledged as the right of an appellant who has, either owing to inability or consciously, not passed on the burden of such tax to the recipient. Having collected the tax, any dispute, while it may not be discountenanced, is questionable when the obligation to deposit that tax with the exchequer has been observed in its breach. The dispute that was carried to Tribunal was certainly not of such commonplace occurrence as to present such congruence. The case law cited by the applicant in the appellate proceedings was, therefore, unlikely to be conforming to the facts and circumstances of the present dispute to warrant acceptance as binding precedent. The demonstrated lack of credibility to justify the claim for liberal interpretation of provisions relating to payment, and of recovery, of tax impinges upon such claim. The Tribunal was not incorrect in disregarding the mitigating aspects sought for by the appellant for relieving themselves of penal consequence by a restitution that is much too late in the day - there is no justification for recall of the order as prayed for by the applicant - application dismissed.
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