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TMI Blog2022 (5) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Department for the Financial Year 2013-14 that the appellant was alleged to have been providing the taxable services, however, without paying the service tax for the consideration received for providing the said service. Accordingly, vide Show Cause Notice No. 1844 dated 27.03.2019, service tax amounting to Rs.1,97,617/- was proposed to be recovered from the appellant along with the interest and the proportionate penalties under Section 77 and 78 of the Finance Act, 1994. 2. The said proposal was confirmed by Order-in-Original No. 23/2019-20 dated 22.11.2019. The appeal was filed before Commissioner (Appeals) who has rejected the same as being filed beyond a period of three month (two months plus one condonable month), from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said period of limitation has to reckon. It is submitted that Commissioner (A) has wrongly taken the date of Order-in-Original to be the relevant date for calculating the period of filing appeal before Commissioner (Appeals). Learned Counsel has brought to the notice the Final Order No. 50350/2022 dated 05.04.2022 of this Bench itself on the same facts and circumstances. Accordingly, has prayed for setting aside the order in appeal and for the impugned appeal to be allowed. 5. While rebutting the submissions learned DR has laid emphasized in para 8.3 of the order under challenge. It is submitted that the application praying for rectification of mistake, since was rejected, the period of 2 months for filing the appeal before Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a prima facie opinion in favour of the appellant / service operator. Commissioner (Appeals) in Para 4.1 of the order under challenge has also observed as follows: "In para 9, it has been held that the appellant had not filed any reply to the show cause notice. It is not correct. The appellant had filed reply to the show cause notice vide their letter dated 26.07.2019 and the same has not been considered while passing the impugned order. Photocopy of the reply so filed and duly acknowledged is enclosed herewith." Despite the said observations, Commissioner (Appeals) in para 8.3 of the order under challenge had mentioned that no mistake was found in the original Adjudicating Authority. It is held that since the application for rectificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter which 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 11[Principal Commissioner of Central Excise or] 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 made under this section unless the [Central Excise Officer] concerned has given notice to the assessee of his intention so to do and has allowed the assessee a reasonable opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the perusal of the copy of the ROM order dated 06.10.2020 as placed on record, there are two mistakes alleged qua the order dated 22.11.2019, as follows: i) While confirming the demand, the gross amount charged / received has not been considered as including of tax, as claimed by them in their reply dated 26.07.2019 to the SCN dated 27.03.2019. Demand was raised on gross amount which was including of tax payable. Therefore, the benefit of cum tax should have been given. ii) On identical facts, in their own case for the earlier period, the benefit of cum tax has been extended by the Hon'ble Commissioner vide OIA no. 169(CRM)ST/JDR/2021 dated 28.07.2021. 11. The perusal makes it clear that the appellant-assessee had since paid certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application of section 74 gets rejected by the Additional Commissioner the order of Additional Commissioner becomes final on the rejection of the said application and thus the relevant date for computation of time period under Section 85 of Finance Act is the date of decision of ROM application and not the date of O-I-O. Even Hon'ble High Court of Madras in the case of Sree Daksha Property Developers Pvt. Ltd. v CCE Coimbatore reported as 2016 (44) STR 236 (Mad.) has held that the period of adjudication about the objection has to be excluded while calculating the stipulated period for filing appeal against the order which was objected. 14. In view of the entire above discussion the aforesaid framed question of adjudication is decided as f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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