TMI Blog2011 (12) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Income Tax Act. In my view, non-consideration of a statutory provision would ipso jure constitute apparent mistake. The mistake in the instant case is of this kind and the same needs to be rectified - Decided in favour of assessee. - E/534/2008 - Misc. Order No. 648/2011 - Dated:- 2-12-2011 - Shri P.G. Chacko, J. None, for the Appellant. Mrs. Sabina Cano, JDR, for the Respondent. ORDER This application filed by the Department, respondent in Appeal No. E/534/2008, points out a mistake apparent from the record and seeks appropriate amendment of Final Order No. 857/2010, dated 28-5-2010 passed by this Bench. There is no representation for the respondent in this application (appellant in the appeal) despite notice. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no provision for levy of interest on an amount of inadmissible Cenvat credit. It is pointed out that sub-rule (3) of Rule 57-I was specifically invoked in the relevant show-cause notice and the same was correctly applied to the facts of the case by the original and first appellate authorities. According to the ld. DR, non-consideration of this provision in the above Final Order has resulted in erroneous conclusions to the detriment of the Revenue. In this connection, she has claimed support from Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd. [2008 (230) E.L.T. 385 (S.C.) = 2010 (18) S.T.R. 84 (S.C.)]. 4. After considering the submissions, I have found substance in the present grievance of the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This view, it appears, can claim support from the Hon ble Supreme Court s judgment in the case of Saurashtra Kutch Stock Exchange Ltd. (paragraphs 39 40). The Apex Court held that non-consideration of a decision of the jurisdictional High Court or of the Supreme Court could be said to be a mistake apparent from the record, to be rectifiable under Section 254(2) of the Income Tax Act. In my view, non-consideration of a statutory provision would ipso jure constitute apparent mistake. The mistake in the instant case is of this kind and the same needs to be rectified. 6. The ROM application is, therefore, allowed and the Final Order is recalled. The appeal is directed to be listed on 10-2-2012 for hearing. Issue notice. (Pronounced dict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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