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2023 (9) TMI 924 - AT - Service TaxRectification of mistake - reduction in demand - Adjudicating Authority can rectify its own order in terms of Section 74 of FA or not - error apparent on the face of record or not - HELD THAT:- 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. The rectification of the order was not made only on apparent error but the issue 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 the order the data was not available before 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. 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, the matter needs to be remanded to the Adjudicating Authority for passing denovo adjudication order after considering the appellants submission to be made. Matter on remand.
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