TMI Blog2013 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant has made an attempt to add facts and materials to their case through the ROM application and the documents filed therewith. Such facts and materials can hardly constitute the record of the case for the purpose of subsection 2 of section 129B of the Act. We have come across additional evidence in the form of two affidavits but such additional evidence cannot be taken into account under subsection 2 of Section 129B ibid. In answer to a query from the bench, the learned counsel for the appellant has failed to show us documentary evidence of a copy of the order-in-original having been received on 19.1.2009 from the Commissioner s office. The appellant could not adduce such evidence before the Commissioner (Appeals) either. In othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal as early as 17.2.2004 as found by the lower appellate authority. In the context of examining this question, this bench perused the original records of adjudication produced by the JDR who represented the respondent. This bench found that a certified copy of the order-in-original was served on the assessee (appellant) on 17.2.2004, and further noted that the learned counsel for the appellant fairly acknowledged the fact. In the result, 17.2.2004 was taken as the date of communication of the order-in-original and the conclusion arrived at by the Commissioner (Appeals) was upheld. In other words, the appeal of the assessee came to be dismissed along with their stay application keeping in view the Hon ble Supreme Court s decision in Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires to be reviewed. The learned counsel has also adverted to the substantive issue discussed in the order-in-original and has endeavoured to show that the appellant was bound to succeed in the appeal on merits. It is submitted that the hefty penalty of Rs.40 lakhs on them is a nightmare inasmuch as no penalty was indeed imposable on them on the facts of their case. Finally, the learned counsel for the appellant appeals to the discretion which is said to be inherent in the tribunal. He prays that the discretion be exercised for the ends of justice and the final order be recalled for the purpose of fresh decision. 3. The learned Deputy Commissioner (AR) argues in support of the final order of this bench and submits that there is no app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of receipt, by the appellant, of the order-in-original on 17.2.2004. If there was a presumption under Section 153 of the Act against the appellant, an effective opportunity of rebuttal was given to them and we satisfied ourselves that, instead of rebuttal, there was a consensus between the appellant and the department regarding the date of communication of the order-in-original to the appellant. Proceeding on this basis, this bench upheld the impugned order and dismissed the assessees appeal. No mistake whatsoever, let alone an apparent mistake, is found in the final order passed by this bench. 5. As rightly submitted by the learned Deputy Commissioner (AR), a mistake apparent from the record must be one, which is capable of being easil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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