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TMI Blog2023 (9) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... .2004. The appellant could not pay service tax in timely manner. The search was conducted at the premises of the appellant and pursuant to which the show cause notice was issued determining the total service tax of Rs. 28,48,560/-. Due to internal disputes of the appellant's management, the hearing were not attended by the appellant and the order-in-original was passed ex-parte by the Adjudicating Authority. On receipt of order-in-original by the appellant, they noticed that there exists certain mistakes in the order-in-original and accordingly they preferred application for rectification of mistake under Section 74 of the Act. The Adjudicating Authority considering the application for ROM passed the rectified order-in-original. Thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kutch Stock Exchange Limited - 2010 (18) STR 84 (SC). (c) Koluthara Exports Limited vs. Union of India -2022 (57) G.S.T.L. 112 (Ker.) (d) Commissioner of Central Excise, Mumbai vs. Bharat Bijlee Limited - 2006 (198) ELT 489 (S.C.) (e) Raval Trading Company vs. CST -2016 (42) S.T.R. 210 (Guj.) (f) Pearl Travels vs. Commissioner of C.Ex. & ST, Daman - 2020 (37) GSTL 242 (Tri. - Ahmd.)] 3. On the other hand Shri P. Ganesan, learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both the sides and perusal of record, we find that impugned issue is whether the Adjudicating Authority is right in passing rectified order in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, an order shall be passed in writing by the [Central Excise Officer] concerned. (6) Subject to the other provisions of this Chapter where any such amendment has the effect of reducing the [liability of an assessee or increasing the refund), the [Central Excise Officer] shall make any refund which may be due to such assessee. (7) Where any such amendment has the effect of enhancing the [liability of the assessee] or reducing the refund already made, the [Central Excise Officer] shall make an order specifying the sum payable by the assessee and the provisions of this Chapter shall apply accordingly. From the plain reading of above Section 74 it is clear that Adjudicating Authority can rectify own order only for the limited purpose i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority therefore, at the time of passing the order the data was not available before the Adjudicating Authority. On this ground also the rectification of order was not correct and legal in terms of Section 74. The remaining issues raised before the Commissioner (Appeals) by the appellant through their appeal is related to penalty. 6. As per our above observations the order of the learned Commissioner (Appeals) in the Revenue's appeal before him is correct and legal. As regards the appellant's appeal which is related to penalty on the demand, the same needs to be decided along with the demand of service tax. Since the adjudication order was passed without any hearing and as per the order there was error in computing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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