TMI Blog2005 (11) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration are that the appellants are registered with the authorities under the category of Air Travel Agent. The appellants I had filed quarterly ST 3 returns for the period ending September 97, December 97, March 98, June 98, half year ending June/99 were filed by the appellant with the jurisdictional Superintendent of Service Tax. All the ST 3 returns as filed were assessed finally by the Superintendent of Service Tax. A Show Cause Notice was issued by the Deputy Commissioner of Service Tax under Section 74 of the Finance Act, 1994, to enhance the assessment and a allegation of short levy was made on the appellant. The adjudicating authority' confirmed the demand and also imposed penalty, on an appeal, the appellate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom its inception 1994. During the relevant period the provisions of the Section 71, which dealt with assessment of Tax stood as under: "Verification of tax assessed by the assessee etc.- (1)For the purpose of making an assessment under this chapter, the Central Excise Officer may serve on any person. Who has furnished a return under Section 70 or upon whom a notice has been served under sub-section (2) of Section 70 (whether a return has been furnished or not), a notice requiring him on a date therein to be specified, to produce or cause to be produced such accounts or documents or other evidence as the Central Excise Officer may require for the purposes of this chapter and may, from time to time, serve further notices requiring the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Central Excise Officer under Section 71, Section 72 or Section 73, or denying his liability to be assessed under this Chapter or by an order levying interest or penalty under this Chapter, may appeal to the Collector of Central Excise(Appeals). (2)Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3)An appeal shall be presented within three months from the date of receipt of the decision or order of the Central Excise Officer, elating to service tax, interest or penalty under this Chapter; Provided that the Collector of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of this Chapter may, within two years of the date on which such order was passes, amend the order. (2)Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub-section (1) the Central Excise Officer passing such order may, notwithstanding anything contained in any law for the time being in force. Amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided. (3)Subject to the other provisions of this section, Excise Officer concerned- (a) may make an amendment under sub-section(1) of his own motion; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 85. That is to say, that, if, an appeal is not filed within time under Section 85, the opportunity to reopen the assessment riot be read into provisions of Section 74. 8. Further, the provisions of the Section 74 can be invoked for rectification of mistake apparent from the record, only by the "Central Excise Officer who passed any order under the provisions of this chapter". In the present case the assessment order under Section 71 was done by the Superintendent of Service, and he only would be the Central Excise Officer under Section 74 to issue amendment to the order, if any. 9. In view of the above, the order-in-appeal deserves to be set aside. The impugned order is set aside and appeal allowed with consequential relief, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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