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2015 (5) TMI 597 - CESTAT NEW DELHI

2015 (5) TMI 597 - CESTAT NEW DELHI - TMI - Rectification of mistake - Imposition of penalty - Calculation of period of limitation - Held that:- If there is a mistake apparent on record the application for rectification of mistake can be filed within 2 years of the date of which such order was passed. Admittedly in this case the appellant has filed the application on Rectification of Mistake within two years of the order of adjudication - On going through the calculation shown in the calculation .....

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orrect amount of penalty imposable on the appellant - matter remanded back - Rectification done. - Appeal No. ST/55647 & 55855/2014-ST(SM) - Dated:- 24-3-2015 - Ashok Jindal, Member (J),J. For the Appellant : Shri Rupinder Singh, Adv. For the Respondent : Ms. Ranjana Jha, DR ORDER Per: Ashok Jindal: The appellants are in appeal against the impugned orders. As both the appeals are interconnected therefore both are taken up together. 2. The facts of the case are that the appellant did not pay Serv .....

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riod of limitation and he has not filed the appeal. Therefore, appeal was dismissed. Against the said order appellant is before me. 3. After receipt of the adjudication order the appellant did not file the appeal but on 18.06.2013 the appellant filed an application for rectification of mistake which was apparent on record. Under section 74 of the Finance Act, 1994 the application for rectification of mistake in the order dated 14.07.2011 was rejected by the Adjudicating Authority on 21.06.2013. .....

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lication of rectification of mistake, therefore, the adjudication order was under consideration by the Adjudicating Authority and has not attained for finality. In these circumstances, order of dismissal of the appeal by the Ld. Commissioner (A) on the ground that appeal has been filed beyond a period of limitation is not sustainable. To support his contention he relied on the decision of this Tribunal in the case of Shree Lotus Exports Vs. CCE Trichy-2011 (24) STR 444 (Tri-Chennai). For the app .....

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e rectified under Section 14 of the Act. In these circumstances, he submits that matter be remanded back to the Adjudicating Authority for reconsideration of the claim. 5. On the other hand Ld. AR strongly opposes the contention of the Ld. Counsel and submits the appellant were given nine opportunities to present their case. Neither they filed reply to the show cause notice nor they appeared before the Adjudicating Authority and it was in the knowledge of the appellant itself by way of issuance .....

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e fact of number of days was in the knowledge of the appellant, therefore, at this stage appellant is not entitled for any benefit of section 74 of the Finance Act, 1994. 6. Heard the parties. Considered the submission. 7. I have gone through provision of section 74 of the Finance Act, 1994 which is reproduced here for the ease of convenience as under: "74. Rectification of mistake.- (1) With a view to rectifying any mistake apparent from the record, the [Central Excise Officer] who passed .....

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ich has been so considered and decided. (3) Subject to the other provisions of this section, the [Central Excise Officer] concerned (a) may make an amendment under sub-section (1) of his own motion; or (b) shall make such amendment if any mistake is brought to his notice by the assessee or the [Commissioner] of Central Excise or the [Commissioner] of Central Excise (Appeals). (4) An amendment, which has the effect of enhancing [the liability of the assessee or reducing a refund], shall not be ma .....

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al 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." 8. From the perusal of the provisions I find that if there is a mistake apparent on record the application for rectification of mistake can .....

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ate is 05.08.2006 whereas service tax was paid by the appellant on 28.09.2006. Therefore, the number of days for period paid were 54 days whereas it is shown as 115 days. Therefore, there is a mistake apparent on record for which impugned order is required to be reconsidered for calculation purpose whether the penalty has been imposed by calculating 54 days or 115 days for appellant and thereafter to arrive at the correct amount of penalty imposable on the appellant. Further, I find that argumen .....

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