2013 (12) TMI 1064 - AT - Service Tax

Rectification of mistake - Review of order - Held that - Application filed by Respondent calls for review of previous order instead of correction of any mistake patent from record. It is settled principles of law that an act to be called as mistake that should be established by an apparent look to the materials on record. Extensive examination when called for, seeking substitution of the decision that shall amount to review. The present application in the guise of rectification of mistake does not call for review of earlier order - Rectification denied.

Summary

Issues:
1. Absence of respondent during appeal hearing and rectification application.
2. Consideration of cross objections and grounds made by respondent.
3. Review of previous order versus correction of apparent mistake.
4. Examination of records leading to the decision in favor of Revenue.

Issue 1 - Absence of respondent during appeal hearing and rectification application:
The respondent was absent during the appeal hearing and also during the consideration of the Miscellaneous Application for rectification of mistake. Despite multiple opportunities, neither the respondent nor its authorized representative appeared, leading to the decision being made based on the Revenue's appeal merits alone.

Issue 2 - Consideration of cross objections and grounds made by respondent:
The respondent claimed that their grounds presented as a cross objection were not considered by the Tribunal. However, without a formal cross objection on record, the respondent's grievance lacked legal basis. The absence of the respondent during the proceedings further weakened their case, leading to the rejection of the rectification application.

Issue 3 - Review of previous order versus correction of apparent mistake:
The Miscellaneous Application filed by the respondent sought a review of the previous order rather than a correction of any apparent mistake. The Tribunal emphasized that a mistake warranting correction should be evident from a mere examination of the record, whereas a review entails a more thorough reevaluation. As the application did not meet the criteria for rectification, it was rejected.

Issue 4 - Examination of records leading to the decision in favor of Revenue:
Upon careful examination of the records and the reasoning provided by the adjudicating authority, it was found that the appellate authority had erred in attributing fault without sufficient evidence. This led to the decision in favor of the Revenue, as the respondent failed to provide substantial merit in their defense. The Tribunal highlighted that immunity from penalty is not a guaranteed right unless explicitly permissible by law, further solidifying the decision to reject the rectification application.

In conclusion, the judgment emphasized the importance of procedural adherence, the necessity of formal cross objections for legal validity, and the distinction between rectification of mistakes and review of orders. The decision ultimately favored the Revenue due to the lack of substantial evidence and merit in the respondent's case.