TMI Blog2016 (5) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... re to suffer from an error apparent on the face of the record, would there be any justification to interfere with the impugned order. We are satisfied that the impugned order does not suffer from any such infirmity. As the scope of Section 74(1) of the Act, for rectification of a mistake, is limited, and as the statements made by the petitioner, at different points of time, are inconsistent, we see no reason to interfere with the well-reasoned order passed by the Commissioner. Rejection of the application, for waiver of pre-deposit, by the CESTAT would only enable the respondent to collect the amount demanded from the petitioner towards service tax, interest and penalty. It would not result in the dismissal of the appeal itself. As the CEST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. After the petitioner submitted his reply to the show cause notice, the adjudicating authority passed the order dated 28.09.2012 confirming the demand of service tax for a total sum ₹ 4,75,69,781/-. In addition, interest under Section 75, and penalty under Sections 76, 77 and 78 of the Act, were also imposed. Aggrieved thereby, the petitioner carried the matter in appeal to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in S.T.No.25304 of 2013 together with the stay application in S.T.No.25384/2013. In its order dated 09.01.2014, the CESTAT noted that, with regards construction of residential complex service, the claim of the appellant was that the service tax demanded had been wrongly computed; this plea cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmit that, as against the pre-deposit directed by the High Court of ₹ 3.00 crores, the petitioner had deposited ₹ 1.5 crores. Sri Gopalakrishna Gokhaley, learned Standing Counsel for the respondent, however, states that he is unaware of any such deposit. Be that as it may, it is not in dispute that the order of this Court, in CEA.No.31 of 2014 dated 14.03.2014 directing the petitioner to deposit a sum of ₹ 3.00 crores, has not been complied with in its entirety. Thereafter, the petitioner herein filed an application under Section 74 of the Act seeking rectification of the mistake in the adjudication order, contending that the sum of ₹ 41,14,69,442/-, referred to by them before the assessing authority, was a typogr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed. The Commissioner has, in his order dated 17.03.2015, given elaborate reasons why the petitioner s claim of rectification of mistake does not merit acceptance. The Commissioner held that the assessee had submitted their written reply to the show cause notice dated 22.10.2009 vide their letter dated 19.11.2009; though the assessee had not mentioned, in their letter dated 19.11.2009, of any enclosures, they had attached two attachments to the said letter; the applicant, in his letter dated 19.11.2009, had all through argued that he was not liable to pay Service Tax but had not discussed about the quantification of the Service Tax liability; he had not objected to the figures adopted in the show cause notice to arrive at the liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 19.11.2009, were not legally admissible for taking cognizance for passing the order dated 28.09.2012; the contention of the assessee that a mistake, apparent from the record, had been brought to the notice of the Adjudicating Authority vide his letter dated 19.11.2009, i.e. prior to issue of the Order-In-Original, was not sustainable in law; in paras 2 3 of the letter dated 19.05.2014, the applicant had sought rectification of the mistake in paras 13(c), 22, 24 25 of the order dated 28.09.2012; what was stated, in the said paras, was the statement of facts in respect of the said order dated 28.09.2012, and was beyond the scope of Section 74 of the Finance Act, 1994; there was no mistake apparent from the record in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 4,14,69,442/- claimed by him to be the actual receipts. Even otherwise, the power conferred under Section 74(1) of the Act is only to rectify a mistake apparent from the record. On the petitioner s own admission, he had, by oversight, informed the adjudicating authority that the amount received by him was ₹ 41,14,69,442/-. Even assuming there is an error, it is because of the mistake committed by the petitioner himself, and not the adjudicating authority. Under the guise of exercise of jurisdiction under Section 74(1) of the Act, it is not open to the assessing authority to review the order passed by him earlier. It is only if there is a mistake, which is apparent from the record before him, can the adjudicating authority e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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