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Sri Kolli Venkata Mohan Rao. Versus Commr. of Customs

2016 (5) TMI 680 - ANDHRA PRADESH HIGH COURT

Rectification of mistake - Section 74 of the Finance Act, 1994 - Demand of Service tax in terms of Section 73 of the Act on residential complex service - Petitioner contended that the sum of ₹ 41,14,69,442/-, referred to by them before the assessing authority, was a typographical mistake and the correct receipts, for the project of construction of 928 houses for the Financial Year 2008-09, was only ₹ 4,14,69,442/-. - Held that:- in the exercise of its Certiorari jurisdiction, thi .....

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nconsistent, 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 CESTAT has the power to examine the material on record, reappreciate the evidence, and arrive at a finding different from that of the ad .....

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Tax dated 17.03.2015 rejecting the petitioner s application, for rectification of the mistake, under Section 74 of the Finance Act, 1994 (for short the Act ). Facts, to the extent necessary, are that the Commissioner of Central Excise, Visakhapatnam initiated investigation against the petitioner, and a show cause notice dated 30.12.2008 was issued to him. On the petitioner furnishing information, by his letter dated 14.10.2009, a second show cause notice dated 22.10.2009, covering the Financial .....

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or 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 .....

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CESTAT directed the petitioner herein to make pre-deposit of ₹ 3.4 crores within a period of six weeks, and report compliance by 21.02.2014. Aggrieved thereby, the petitioner herein filed Central Excise Appeal No.31 of 2014 and this Court, in its order dated 14.03.2014, observed that the CESTAT had rightly exercised its discretion to make the deposit; and, instead of ₹ 3.4 crores directed to be deposited by the CESTAT, it would suffice if the appellant (petitioner herein) deposited a .....

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e appeal. Sri S.V.S.Chowdary, learned counsel for the petitioner, would submit 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 ₹ .....

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n for rectification was rejected by the Commissioner of Central Excise, Customs and Service Tax on 17.07.2014, on the ground that no action could be taken, by them at their end, as the matter was under consideration before the CESTAT, Bangalore; and, in view of the judgment of the High Court in CEA.No.31 of 2014 dated 14.03.2014, wherein it was held that the Tribunal or the appellate forum had to decide the issue whether the figure, mentioned in the impugned order, was correct or not. Aggrieved .....

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dent was directed to consider the application, for rectification of mistake under Section 74(2) of the Act, on its own merits and, in accordance with law, after affording the petitioner an opportunity to make his claim of the alleged typographical mistake. Consequent thereto, the impugned order dated 17.03.2015 was passed. 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 .....

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gures adopted in the show cause notice to arrive at the liability; he had attached a copy of Annexure-I, of the show cause notice dated 22.10.2009, to said letter dated 19.11.2009; in the copy of Annexure-I the sum of ₹ 59,02,61,437/-, at Sl.No.3 and column No.3 of the Table, was rounded off, and ₹ 22,02,61,207/- was written with a pen; similarly, the total amount of ₹ 68,68,45,146/- in column No.3 was rounded off, and ₹ 30,64,28,271/- was written by pen; such writings wi .....

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tter dated 19.11.2009; this table was similar to the table given in their letter dated 14.10.2009 before issue of the show cause notice; the amount of ₹ 41,14,69,442/- at Sl.No.5 was replaced with ₹ 4,14,69,442/-; the fact of this replacement, and the reason for doing so, was not mentioned either in the attachment or in the main letter; the said letter dated 19.11.2009 did not make any mention that the same had any enclosures; the attached statement did not have any signature authent .....

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tion 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 Order-in-Original dated 28.09.2012; consequently, there was no scope for Rectification of Mistake in terms of Section 74 of the Finance Act, 1994; and the applications for Rectif .....

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d received only ₹ 4.98 crores; and it was evident that the figure was erroneously reflected as ₹ 41,14,69,442/-, instead of ₹ 4,14,69,442/-. A typed statement, allegedly the ledger extract, was placed before us by Sri S.V.S. Chowdhary, Learned Counsel for the petitioner. The typed sheet shows that a sum in excess of ₹ 4.98 crores, was received, and not ₹ 4,14,69,442/-. The relevant extract of the ledger for the year 2008-09, in so far as it related to the amounts re .....

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