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2016 (5) TMI 680 - ANDHRA PRADESH HIGH COURT

2016 (5) TMI 680 - ANDHRA PRADESH HIGH COURT - 2016 (42) S.T.R. 676 (A. P.) - 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 ₹ 4,14,6 .....

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d 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 CESTAT has the power to examine the material on record, re .....

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st the order passed by the Commissioner of Central Excise, Customs and Service 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 1 .....

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ority 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 re .....

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d to consider any relief in respect of this claim urged by the appellant. The 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 .....

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rected, in case the order was complied with, to proceed with the hearing of the 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.3 .....

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cial Year 2008-09, was only ₹ 4,14,69,442/-. The petitioner s application 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 wheth .....

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available to the original authority under Section 74(2) of the Act. The respondent 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 .....

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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; 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 wa .....

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d a Table of two pages titled Total Turnover as on 31.03.2009 , to the said letter 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 .....

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s 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 Order-in-Original dated 28.09.2012; consequently, there was no scope for Rectification of Mistake in .....

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e ledger extract, relating to the said work, would show that the petitioner had 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 .....

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tion 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 ord .....

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